Motion seeking permission to serve and file a late claim for wrongful confinement denied.
|Claimant short name:||POWELL|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||Louis Powell, Pro Se|
|Defendant's attorney:||Hon. Letitia James, New York State Attorney General
By: Albert D. DiGiacomo, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 9, 2021|
|See also (multicaptioned case)|
Pro se Movant Louis Powell, an incarcerated individual in the custody of the Department of Corrections and Community Supervision (DOCCS), seeks to serve and file a late claim pursuant to Court of Claims Act § 10 (6). The proposed claim alleges causes of action for wrongful confinement and intentional and/or negligent infliction of emotional distress (see Movant's Aff in Supp, Ex A [Proposed Claim] ¶ 2). Defendant opposes the motion.
The proposed claim alleges that, on November 23, 2019, Movant was admitted to the Special Housing Unit (SHU) for reasons unrelated to the misbehavior report at issue here. Upon his admission to SHU, Movant's property was inventoried and documented on a Form 2064 entitled "'Personal Property Transferred'" (Proposed Claim ¶ 5). This Form 2064 was completed by Correction Officer Casper and indicates that no food items were inventoried upon Movant's admission to SHU (Proposed Claim, Ex A).(1)
On December 14, 2019, Movant was issued a misbehavior report by Sergeant Mayo charging him with violating prison disciplinary rules 113.10 (Weapon), 113.11 (Altered Item) 113.23 (Contraband), and 114.10 (Smuggling) (id., Ex B). The Misbehavior Report states that on December 14, 2019, "Officer Mierek . . . was directed by Lt. Hoke [to] perform a suspicion search [of] the sealed property of [incarcerated individual] Powell . . . for possible contraband" and "[a]t approximately 8:30 [a.m.,] Officer Mierek recovered an ice pick type weapon inside a package of uncooked spaghetti" (id.). The weapon discovered was described as "a plastic handle of a toothbrush sharpened at one end and with a handle at the other end" (id.).
A tier III disciplinary hearing commenced on December 20, 2019 (see id., Ex D [Hearing Record Sheet]). At the disciplinary hearing, Movant pleaded not guilty to all of the charges and maintained that the contraband could not have belonged to him because he had not possessed spaghetti or any other food items upon his admission to SHU. Movant submitted the Form 2064 to support his position. The Hearing Officer "acknowledged that there were no food items listed on [the] Form 2064" and noted that this fact would be "considered evidence with regard to th[e] hearing" (Proposed Claim ¶ 14 [internal quotation marks omitted]). The Hearing Officer called Correction Officer Casper to testify regarding the preparation of Movant's Form 2064. When asked by the Hearing Officer whether he recalled there being food with Movant's property when he was transferred to SHU, Correction Officer Casper replied "[y]es, he had two draft bages [sic] full of food" (id. ¶ 18 [internal quotation marks omitted]). The Hearing Officer questioned why said food items were not reflected on the Form 2064. In response, Correction Officer Casper conceded "that was just an error on my part" (id. ¶ 19).
At the conclusion of the hearing, Movant was found guilty of all charges and received a penalty of 60 days SHU confinement invoked, 120 days SHU confinement, and 180 days loss of recreation, packages, commissary, and phone privileges (see Proposed Claim, Ex C). Movant filed an administrative appeal on January 27, 2020 (see id., Ex E). On February 18, 2020, the Director of Special Housing/Inmate Disciplinary Program (the "Director") (1) affirmed the guilty determination as to rule 113.10 (Weapon) and (2) dismissed the charges for violations of 113.11 (Altered Item) 113.23 (Contraband), and 114.10 (Smuggling) (id., Exs F, G). As to the dismissed charges, the Director concluded that the "misbehavior report does not support the charges" (id., Ex G). The penalty, however, was not changed (see id., Ex F).
On July 28, 2020, Movant, through counsel, requested reconsideration of the Director's February 18, 2020 determination (see id., Ex H). Movant argued, among other things, that "DOCCS failed to adhere to its own regulations governing the inventory and search of [his] property" (id. at 1). By letter dated July 30, 2020, the Director denied Movant's request for reconsideration (see id., Ex I). Movant thereafter commenced a CPLR article 78 proceeding to reverse and annul the disciplinary determination (see id., Ex J).
While the CPLR article 78 proceeding was pending, the Director reversed and expunged Movant's disciplinary determination by Memorandum dated March 30, 2021 for the "failure to maintain a complete electronic record of the hearing" (id., Exs K, L). Such determination rendered the CPLR article 78 proceeding moot (see id., Ex M). This motion for late claim relief followed.
Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." "A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Court of Claims Act § 10 , [3-b]).
The Court has discretion to permit the filing of a late claim pursuant to Court of Claims Act §10 (6) provided that the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely.
A claim for wrongful confinement accrues on the date the claimant is released from confinement (see O'Dell v County of Livingston, 174 AD3d 1307, 1308 [4th Dept 2019]; see Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011]) and carries a one-year statute of limitations under CPLR 215 (3). Although Movant does not specifically allege when he was released from SHU confinement, a review of the Superintendent Hearing Disposition Rendered annexed to the proposed claim indicates his confinement ended on September 10, 2020 (see Proposed Claim, Ex C). Because this motion was served on May 31, 2021 and filed on June 28, 2021, the proposed claim for wrongful confinement is timely.
"A claim for intentional or negligent infliction of emotional distress accrues, at the earliest, when the injured party learns of the defendant's outrageous conduct and suffers consequent emotional distress, because before that time, distress and damage are lacking" (Sgambati v State of New York, UID No. 2001-013-002 [Ct Cl, Patti, J., Feb. 27, 2001]; see Augeri v Roman Catholic Diocese of Brooklyn, 225 AD2d 1105, 1106 [4th Dept 1996]). It appears Movant is alleging he suffered emotional distress as a result of his confinement in the SHU. Consequently, the Court concludes that Movant's damages for emotional distress, if any, were reasonably ascertainable upon his release from SHU confinement on September 10, 2020.
Similar to a claim for wrongful confinement, a claim for intentional infliction of emotional distress carries a one-year statute of limitations (see Yong Wen Mo v Gee Ming Chan, 17 AD3d 356, 358 [2d Dept 2005]). Because this motion was served on May 31, 2021 and filed on June 28, 2021, the proposed claim for intentional infliction of emotional distress is timely. Moreover, the proposed cause of action for negligent infliction of emotional distress, which carries a longer, three-year statute of limitations (see id.), is also timely.
Upon satisfaction that the proposed claim is timely, the Court will consider six statutory factors set forth in Court of Claims Act § 10 (6) as well as other relevant factors in determining whether to grant the late claim (see Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Although the movant need not satisfy every statutory factor enumerated in Court of Claims Act § 10 (6) (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 ), the ultimate burden rests with the movant to persuade the Court to grant the late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797, 804 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. Movant alleges that his delay in filing the claim is excusable because he was incarcerated in SHU confinement, "was not aware of the filing period in the Court of Claims Act," and did not have access to legal counsel or legal references/materials (Movant's Aff in Supp of Mot ¶ 2). It is well settled that a movant's incarceration, ignorance of the law, and inability to secure legal counsel are not compelling excuses for the late filing of a claim (see Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002] ["conclusory allegations that one is incarcerated and without access to legal references have also been rejected as a reasonable explanation" for filing a late claim], lv dismissed 99 NY2d 589 ; Musto v State of New York, 156 AD2d 962, 962-963 [4th Dept 1989] [inability to secure counsel is not a sufficient excuse to permit filing of late claim]). Accordingly, this factor weighs against granting late claim relief. Nevertheless, "the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief" (Bay Terrace Coop. Section IV, 55 NY2d at 981).
The next three factors to be addressed--whether Defendant had notice of the essential facts constituting the Claim, whether Defendant had an opportunity to investigate the circumstances underlying the Claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant--are interrelated and will be considered together (see Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Movant argues that Defendant had notice of the facts constituting his proposed claim because DOCCS conducted an administrative proceeding relating to this wrongful confinement (see Movant's Aff in Supp of Mot ¶ 3). Moreover, Movant contends that Defendant will not be prejudiced by permitting the claim to proceed because it "investigated this incident through its employees, many of whom are still available to the Attorney General to be contacted with respect to this incident" (id. ¶ 5). Based on Movant's representations, the Court concludes that these three factors weigh in favor of granting late claim relief (see Bonie v State of New York, UID No. 2020-038-540 [Ct Cl, DeBow, J., July 8, 2020]).
The fifth factor to be considered is whether Movant has another remedy available. Movant argues, and Defendant does not dispute, that Movant does not have an alternative remedy. Consequently, this factor also weighs in Movant's favor.
The last and perhaps most important factor to be considered is whether the proposed claim has the appearance of merit, for "it would be futile to permit a defective claim to be filed even if the other factors in Court of Claims Act § 10 (6) supported the granting of the [movant's] motion" (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010] [internal quotation marks and citation omitted], affd sub nom. Donald v State of New York, 17 NY3d 389 ). It is the movant's burden to show that there is reasonable cause to believe that a valid cause of action exists and that the claim is not patently groundless, frivolous or legally defective (see Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Although this standard places a heavier burden upon a party who has filed late, it does not require a movant to definitively establish the merit of the claim or to overcome all legal objections before the Court will permit the filing of a late claim (see Matter of Santana, 92 Misc 2d at 11-12). The proposed claim purports to allege causes of action for wrongful confinement and intentional and/or negligent infliction of emotional distress.
It is well settled that actions of correctional facility employees taken in furtherance of authorized disciplinary measures are quasi-judicial in nature and entitled to absolute immunity unless the employees exceed their authority or violated governing statutes and regulations (see Arteaga v State of New York, 72 NY2d 212, 214 ; Davidson v State of New York, 66 AD3d 1089, 1090 [3d Dept 2009]). If, however, prison officials fail to comply with a rule or regulation governing such disciplinary hearings, absolute immunity may be lost and liability for money damages may be imposed if it is proven that the regulatory violation involved minimal due process protections and caused actual prejudice or injury to the incarcerated individual at the hearing (see Watson v State of New York, 125 AD3d 1064, 1065 [3d Dept 2015]; Davidson, 66 AD3d at 1090; Vazquez v State of New York, 10 AD3d 825, 826 [3d Dept 2004]; Vidal v State of New York, UID No. 2021-041-026 [Ct Cl, Milano, J., Apr. 29, 2021]).
Movant does not specifically allege that DOCCS violated any of its own rules and regulations in conducting the disciplinary hearing or imposing penalties against him. It appears Movant's claim for wrongful confinement is premised upon the contention that DOCCS violated its own rules and regulations in issuing a misbehavior report that was inconsistent with Movant's Form 2064 (see Proposed Claim ¶¶ 11-13). Specifically, Movant suggests that because the Form 2064 "confirms that there were no food items inventoried when [his] personal property was processed upon his SHU admission" (id. ¶ 13 & Ex A), the weapon discovered inside a box of uncooked spaghetti could not belong to him (see id. ¶ 11). At the disciplinary hearing, Correction Officer Casper, the officer who inventoried Movant's food upon his admission to SHU, conceded that he committed an error in failing to inventory "two draft bages [sic] full of food" (id. ¶¶ 18-19).
As an initial matter, it cannot be said that DOCCS' failure to properly inventory Movant's food was the impetus for the misbehavior report and subsequent disciplinary hearing (see Lamage v State of New York, UID No. 2011-010-011 [Ct Cl, Ruderman, J., May 18, 2011]; Culbreath v State of New York, UID No. 2006-028-585 [Ct Cl, Sise, J., Oct. 2, 2006]). Rather, the misbehavior report was issued after contraband was found following a search of Movant's property. Indeed, if Correction Officer Casper had properly completed the Form 2064, it would have revealed Movant possessed two bags of food, which may have supported the guilty determination. Additionally, Defendant's failure to complete the Form 2064 was before the hearing officer and argued by Movant both at the disciplinary hearing and on appeal of the hearing officer's determination. Thus, Movant suffered no prejudice in his disciplinary hearing resulting from Defendant's violation in failing to complete the Form 2064 (Lamage, 2011-010-011). Accordingly, Movant's claim for unlawful confinement lacks the appearance of merit.
To the extent the proposed claim purports to allege a cause of action for intentional infliction of emotional distress (see Proposed Claim ¶ 2), it is well settled "that public policy prohibits claims against the State for intentional infliction of emotional distress" (Sawitsky v State of New York, 146 AD3d 914, 915 [2d Dept 2017], lv denied 29 NY3d 908 ; Cadore v State of New York, UID No. 2021-028-510 [Ct Cl, Sise, P.J., Mar. 30, 2021]). Consequently, this cause of action lacks the appearance of merit as a matter of law.
Similarly, Movant's proposed cause of action for negligent infliction of emotional distress lacks the appearance of merit. "A cause of action for negligent infliction of emotional distress generally requires [a claimant] to show a breach of duty owed to her which unreasonably endangered her physical safety, or caused her to fear for her own safety" (Schultes v Kane, 50 AD3d 1277, 1278 [3d Dept 2008] [internal quotation marks and citation omitted]; see Taggart v Costabile, 131 AD3d 243, 252-253 [2d Dept 2015]). The proposed claim fails to allege that Movant's physical safety was endangered or that Movant was otherwise in fear of his safety. Consequently, this cause of action lacks the appearance of merit (see McLaughlin v State of New York, UID No. 2015-018-658 [Ct Cl, Fitzpatrick, J., Nov. 18, 2015]; Mercedes v State of New York, UID No. 2014-044-571 [Ct Cl, Schaewe, J., Dec. 9, 2014]; see also Moses v State of New York, 2014-041-042 [Ct Cl, Milano, J., July 18, 2014] [although the proposed claim states it is for negligent infliction of emotional distress, the essence of the proposed claim is for wrongful confinement]).
Therefore, upon balancing all of the factors in the Court of Claims Act section 10 (6), it is hereby:
ORDERED Motion No. M-96930 is DENIED in its entirety.
September 9, 2021
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
The Court considered the following papers in deciding this motion:
(1) Notice of Motion Seeking Permission to File a Late Claim, dated May 31, 2021.
(2) Movant's Affidavit in Support of the Motion, sworn to on May 15, 2021, with attachments.
(3) Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General, in Opposition to the Motion, dated August 26, 2021.
1. The Form 2064 annexed to the motion is faint, but it is not disputed that the Form contains an inventory of Movant's property upon his admission to SHU and was completed by Correction Officer Casper.