|Claimant short name:||OVALLE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-96214 M-96610|
|Judge:||MAUREEN T. LICCIONE|
|Claimant's attorney:||Ferro, Kuba, Mangano PC
By: Michael N. Manolakis, Esq.
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
By: Antonella Papaleo, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 27, 2021|
|See also (multicaptioned case)|
The instant claim was filed on October 2, 2020, seeking damages for claimant's allegedly wrongful confinement from September 18, 2017 through October 11, 2019 and for malicious prosecution. Defendant now moves to dismiss the claim. Claimant cross moves to amend the claim. By separate motion, claimant also moves for permission to file a late claim pursuant to Court of Claims Act § 10 (6).
Motion to Dismiss
Defendant moves to dismiss the claim on several grounds. First, defendant argues that the notice of intention to file a claim (NI) served upon the Office of the Attorney General (OAG) on December 27, 2019 did not extend the time for claimant to file and serve a claim because the NI failed to comply with Court of Claims Act § 11 (b). Next, defendant argues that a second NI, served upon the OAG on September 15, 2020, also did not extend the time for claimant to file and serve a claim because the NI was unverified and is therefore a nullity. Claimant contends that because both the first NI and the second NI were defective, the claim was untimely filed and served.
Defendant also argues that the Court lacks subject matter jurisdiction over the claim for several reasons. First, defendant argues that the claim essentially asks the Court to review an administrative determination which the Court lacks the power to do. Next, defendant argues that claimant's cause of action for wrongful confinement is barred by the doctrine of absolute judicial immunity; that the parole warrants that resulted in claimant's detention were valid on their face; that claimant's confinement during the relevant period of time was privileged; that the claim is barred by the doctrine of res judicata; and that the Division of Parole is entitled to absolute immunity for its actions in confining claimant. Lastly, defendant argues that claimant's cause of action for wrongful confinement fails because claimant cannot demonstrate the absence of probable cause or actual malice.(1)
Court of Claims Act § 11 (b) "places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim [or notice of intention to file a claim] to specify (1) the nature of [the claim]; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed" (Lepkowski v State of New York, 1 NY3d 201, 206  [internal quotation marks omitted]). The requirements of Court of Claims Act § 11 (b) are jurisdictional in nature and "strict compliance" with the requirements is a necessary precondition to maintaining a claim in this Court (Kolnacki v State of New York, 8 NY3d 277, 281 ). Court of Claims Act § 11 (b) requires a claim to state "the items of damages or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed." Because the claim asserts causes of action for two intentional torts--wrongful confinement and malicious prosecution--claimant was required to plead the total sum claimed, but failed to do so (see Tubbs v State of New York, UID No. 2007-044-575 [Ct Cl, Schaewe, J., Oct. 24, 2007] [failure to plead the total sum claimed in claim alleging intentional torts mandates dismissal of claim as jurisdictionally deficient]).(2)
Claimant's failure to comply with the jurisdictional requirements of Court of Claims Act § 11 (b) by not including items of damages and the total sum claimed requires dismissal of the claim (Kolnacki, 8 NY3d at 281; see also Weaver v State of New York, 82 AD3d 878, 879 [2d Dept 2011], lv denied 19 NY3d 804 ).(3) As the Court finds that the claim is jurisdictionally defective, the Court need not reach defendant's alternate grounds for dismissal.
Motion to Amend
Claimant seeks to amend the jurisdictionally defective claim to add a total sum claimed. However, it is well-settled that a jurisdictional defects cannot be cured by amendment (see Hogan v State of New York, 59 AD3d 754 [3d Dept 2009]; Ortez v State of New York, UID No. 2021-038-542 [Ct Cl, DeBow, J., July 14, 2021]; Barnett v City Univ. of New York, UID No. 2017-053-539 [Ct Cl, Sampson, J., July 18, 2017]; Purisic v State of New York, UID No. 2016-032-119 [Ct Cl, Hard, J., Apr. 4, 2016]). Thus, claimant's motion to amend the claim is denied.
Motion for Permission to File and Serve a Late Claim
The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act § 10 ). These factors are: (1) whether the delay in filing the claim was excusable; (2) whether the state had notice of the essential facts constituting the claim; (3) whether the state had an opportunity to investigate the circumstances underlying the claim; (4) whether the state was substantially prejudiced; (5) whether the claimant has any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act § 10 ). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 ). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the movant's application (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]).
Before addressing the six statutory factors, the Court must determine whether claimant's causes of action for wrongful confinement and denial of due process are timely under CPLR Article 2 (Court of Claims Act § 10 ).
The malicious prosecution cause of action accrued on October 2, 2019, the date that claimant's petition for a writ of habeas corpus was granted (Kaplan v State of New York, UID No. 2018-040-098 [Ct Cl, McCarthy, J., Oct. 25, 2018] ["A cause of action for malicious prosecution accrues when the underlying proceeding is terminated in a person's favor"] [citations omitted]). The wrongful confinement cause of action accrued on October 11, 2019, the date that claimant was released from confinement (Roots v State of New York, UID No. 2017-038-543 [Ct Cl, DeBow, J., June 15, 2017]). The one-year statute of limitations set forth in CPLR 215 applies to both causes of action.
On March 20, 2020, in response to the coronavirus public health emergency, Governor Andrew M. Cuomo issued Executive Order No. 202.8, which, among other things, directed that "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to [certain state laws], any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020" (Executive Order No. 202.8, dated Mar. 20, 2020 [9 NYCRR 8.202.8] [emphasis added]). That directive was extended through successive Executive Orders, with the final extension through and including "November 3, 2020, and after such date any such time limit will no longer be tolled" (Executive Order No. 202.67, dated Oct. 4, 2020 [9 NYCRR 8.202.67]). Accordingly, claimant's time to commence this action was tolled on March 20, 2020, at which time claimant had 196 days remaining to commence the malicious prosecution cause of action, and 205 days remaining to commence the wrongful confinement cause of action (see Brash v Richards, 195 AD3d 582 [2d Dept 2021]). The statute of limitations began running again on November 4, 2020, and claimant's time to file and serve the instant motion expired on May 19, 2021 for the malicious prosecution cause of action and May 28, 2021 for the wrongful confinement cause of action. As claimant filed and served the instant late claim application on March 31, 2021, it is timely under CPLR 215.
As to the first factor, claimant has not provided an excuse for failing to timely file and serve a claim. Therefore, the Court finds that the first factor does not weigh in claimant's favor.
The next three factors--defendant's notice of the issues, opportunity to investigate, and prejudice--are interrelated and therefore frequently considered together. Movant argues that defendant has notice of the issues, the opportunity to investigate, and that it will not be prejudiced if the Court permits the filing of a late claim. Defendant does not argue that it lacked notice, the opportunity to investigate, or that it will be substantially prejudiced by claimant's delay in filing the claim. Insofar as defendant has not refuted claimant's assertions as to these three factors, said factors are deemed to weigh in claimant's favor (see Davis v State of New York, UID No. 2018-032-20 [Ct Cl, Hard, J., Mar. 23, 2018]).
Claimant does not address the fifth factor of whether an alternative remedy is available. Therefore, the Court finds that this factor does not weigh in claimant's favor.
Turning then to the final factor, in order to establish a meritorious cause of action, claimant must establish that his claim is not "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Court of Claims Act § 10 ; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). "While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require [claimant] to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit [claimant] to file a late claim" (Williams v State of New York, UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]; see Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11-12).
The proposed claim alleges that, on January 7, 2010, claimant was convicted of assault in the second degree and sentenced to six years incarceration and five years of post-release supervision (Proposed Claim ¶ 4). On or about March 17, 2015, claimant completed a period of incarceration and was released to serve a period of post-release supervision (also referred to within the claim as "parole supervision") with a maximum expiration date of March 19, 2020 (id., ¶ 5). A special condition of claimant's parole supervision prohibited claimant from fraternizing with his co-defendant from the underlying criminal matter. Claimant alleges that his parole officer failed to review this special condition and obtain the required signatures on the document outlining the special condition, and it was therefore unenforceable and could not support a valid parole violation detainer warrant (id.).
On or about September 18, 2017, claimant was arrested and subsequently incarcerated on a parole violation detainer warrant (no. 0762538) (Proposed Claim ¶ 8). Claimant alleges that the Department of Corrections and Community Supervision (DOCCS) lacked jurisdiction to issue the parole warrant because claimant was under the custody and control of the Suffolk County Correctional Facility, not the Division of Parole (id.). The claim also alleges that the charges underlying the parole warrant were false (id., ¶ 10). A preliminary parole violation hearing was held on September 25, 2017. The administrative law judge (ALJ) presiding over the hearing found that probable cause existed to support one charge contained in the parole detainer warrant--that claimant violated a special condition of his parole by having contact with his co-defendant (id., ¶ 9). Claimant remained incarcerated pending a final parole revocation hearing.
Following the preliminary parole violation hearing, claimant filed a petition for a writ of habeas corpus arguing that there was insufficient evidence presented at the hearing to support a finding of probable cause (Proposed Claim ¶ 10). The petition alleged that claimant's co-defendant was working on the date that claimant allegedly had contact with him and that DOCCS acted in bad faith and filed a false charge against him within the parole detainer warrant (id.). On November 29, 2017, the Honorable Joseph A. Santorelli granted claimant's petition, finding that probable cause had not been established at the hearing (id., ¶ 11). Justice Santorelli ordered claimant to be released and returned to parole supervision and vacated the parole detainer warrant.
On November 30, 2017, while claimant was awaiting release pursuant to Justice Santorelli's order, the Division of Parole executed a second parole detainer warrant (no. 762686) that cited a delinquency date of September 23, 2017 (Proposed Claim ¶ 13). The second parole detainer warrant charged claimant with the same conduct charged in the first parole detainer warrant that was vacated by Justice Santorelli. Claimant alleges that the parole detainer warrant was not valid on its face and that DOCCS did not have the authority to issue the warrant because claimant was not under post-release supervision at the time of its issuance (id.).
A preliminary parole revocation hearing on the second parole detainer warrant was held on December 13, 2017 (Proposed Claim ¶ 15). The hearing officer found that claimant was under parole supervision at the time the warrant was issued and that probable cause existed to substantiate the parole detainer warrant (id.). Thereafter, claimant filed a petition for a writ of habeas corpus on January 31, 2018 (id., ¶ 16). Three separate judges recused themselves from hearing the petition before the petition came before Supreme Court Justice James Hudson who had sentenced claimant in his underlying criminal matter (id.). That judge denied the petition (id.).
Claimant's final parole hearing took place on March 1, 2018 (Proposed Claim ¶ 17). Claimant alleges that several due process violations occurred at the final parole hearing (id.). Nevertheless, the ALJ sustained the parole detainer warrant and claimant remained incarcerated.
Claimant filed another petition for a writ of habeas corpus in August 2019 (Proposed Claim ¶ 18). On October 2, 2019, Justice Stephan G. Schick granted the petition and dismissed the second parole detainer warrant, finding that the charges contained in the warrant "were brought in bad faith" and constituted "an abuse of discretion" (Exhibit 17; NYSCEF Doc. No. 64). Claimant was released from incarceration on October 11, 2019.
Defendant argues that claimant has failed to establish the appearance of merit of the claim because it improperly seeks a review of an administrative determination. In setting forth this argument, defendant characterizes the claim as challenging determinations of the Parole Board. If claimant were challenging the hearing officer's determination following the preliminary parole violation hearing or the final parole hearing, the Court would lack subject matter jurisdiction over the claim (Polanco v State of New York, 130 AD3d 1494 [3d Dept 2015]). However, where such as here, a claim alleges causes of action for false imprisonment and malicious prosecution premised on a parole warrant issued in bad faith, jurisdiction in the Court of Claims is proper (Andriani v State of New York, UID No. 2020-038-535 [Ct Cl, DeBow, J., June 22, 2020]).
Defendant further argues that the actions of the Parole Board are protected by absolute immunity. As explained in the preceding paragraph, claimant challenges the actions of parole officers in issuing the parole detainer warrant, not the acts of the Parole Board. A parole officer who issues a warrant "is performing an investigatory rather than a prosecutorial function" and is therefore entitled to qualified immunity, but not absolute immunity (Best v State of New York, 264 AD2d 404, 404 [3d Dept 1999]). Qualified immunity is abrogated where "there is bad faith or the action taken is without a reasonable basis" (Arteaga v State of New York, 72 NY2d 212, 216 ). The proposed claim includes allegations that the parole officers acted in bad faith.
To establish a claim of wrongful confinement, "claimant [is] required to show that (1) defendant intended to confine him, (2) he was conscious of the confinement, (3) he did not consent to the confinement, and (4) such confinement was not otherwise privileged" (Cass v State of New York, 134 AD3d 1207, 1208 [3d Dept 2015], lv dismissed 27 NY3d 972  [internal quotation marks and citations omitted]; accord Miller v State of New York, 124 AD3d 997, 998 [3d Dept 2015]).
Defendant argues that claimant has failed to establish that his confinement was not privileged. "An otherwise unlawful detention 'is privileged where the confinement was by arrest under a valid process issued by a court having jurisdiction' " (Nazario v State of New York, 75 AD3d 715, 718 [3d Dept 2010], lv denied 15 NY3d 712 , quoting Collins v State of New York, 69 AD3d, 46, 51 [4th Dept 2009] [additional citations omitted]). "Absent an 'express or inferable' allegation that the parole warrant was invalid on its face or that the issuing entity lacked jurisdiction to issue the warrant, a claim for false arrest and imprisonment lacks merit as a matter of law (Green v State of New York, 39 Misc 3d 1293[A], 2013 NY Slip Op 50931[U], *6 [Ct Cl 2013], quoting Ferrucci v State of New York, 42 AD2d 359, 361 [3d Dept 1973], affd 34 NY2d 881 ). Here, claimant's proposed claim contains allegations that both parole detainer warrants were invalid on their face and that the Division of Parole lacked the jurisdiction to issue the warrants (Proposed Claim ¶¶ 5, 8, 13).
Defendant next argues that claimant's allegation that the Division of Parole was without jurisdiction to issue the warrants is barred by the doctrine of res judicata. The proposed claim contains allegations asserting that claimant was not a parolee, and thus not under the jurisdiction of the Division of Parole, when the warrants were issued. Claimant set forth this same argument before Justice James Hudson, claimant's sentencing judge who denied his first petition for a writ of habeas corpus, following the issuance of the second parole detainer warrant (NYSCEF Doc. No. 59). Justice Hudson rejected this argument (id.). Therefore, defendant argues that the question of whether claimant was still a parole detainee at the time that the second parole detainer warrant was issued was already decided by Justice Hudson and is therefore barred by the doctrine of res judicata.
The doctrine of res judicata or "claim preclusion" bars claims that were actually litigated as well as those that could have been litigated in a prior proceeding (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 348 ; Pauk v Board of Trustees of City Univ. of New York, 111 AD2d 17, 20-21 [1st Dept 1985], affd 68 NY2d 702 ). In O'Brien v City of Syracuse, 54 NY2d 353, 357 , the Court of Appeals stated that "once a claim is brought to final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or seeking a different remedy." The doctrine of collateral estoppel or "issue preclusion" applies where an issue "was actually and necessarily previously decided in a prior proceeding" (Lewis v City of New York, 17 Misc 3d 537, 543 [Sup Ct, Bronx County 2007], citing Ryan v New York Tel. Co., 62 NY2d 494 ).
Defendant argues that claimant could have sought relief by appealing Justice Hudson's order and cannot relitigate Justice Hudson's holding in this Court. Claimant did in fact appeal Justice Hudson's order to the Appellate Division, Second Department (People ex rel. Ovalle v Franchi, 2020 NY Slip Op 73260[U] [2d Dept 2020]). By order to show cause dated July 28, 2020, the parties were directed to show before the Court as to why the appeal should not be dismissed as the appeal was rendered academic by claimant's release from incarceration. Claimant sought to withdraw the appeal and the appeal was deemed withdrawn on October 19, 2020 (id.).
In order to apply the doctrines of either res judicata or collateral estoppel, a claim or issue must have been decided on the merits (Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 350; Liberty Assoc. v Etkin, 69 AD3d 681, 682 [2d Dept 2010]). Here, the issue of whether the Division of Parole was without jurisdiction to issue the warrants was not decided on the merits, as the appeal was rendered academic by claimant's release from incarceration (see People ex rel. Brown v New York State Div. of Parole, 262 AD2d 433 [2d Dept 1999] [habeas corpus proceeding is rendered academic when the petitioner is released from incarceration]). Thus, the issue of whether the Division of Parole lacked jurisdiction to issue the warrants was not brought to final conclusion and the doctrines of res judicata and collateral estoppel do not apply (Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 349-350; see also Church v New York State Thruway Auth., 16 AD3d 808, 812 [3d Dept 2005] [issues not "actually decided" by a court when a motion is rendered academic prior to the court's resolution of the issues presented therein]).
Turning finally to claimant's cause of action for malicious prosecution, "[t]he elements of an action for malicious prosecution are (1) the initiation of a proceeding, (2) its termination favorably to [claimant], (3) lack of probable cause, and (4) malice" (Colon v City of New York, 60 NY2d 78, 82 ). Defendant argues that claimant cannot establish that his parole revocation proceedings were initiated with a lack of probable cause, despite two separate judges finding that both parole detainer warrants at issue here were not supported by probable cause. While a presumption of probable cause attaches where a probable cause finding is established at a preliminary revocation hearing, "conduct undertaken in bad faith" overcomes this presumption (Green v State of New York, 39 Misc 3d 1293[A], 2013 NY Slip Op 50931[U], *8 [Ct Cl 2013], quoting Colon v City of New York, 60 NY2d at 83). The proposed claim alleges bad faith conduct that could overcome the presumption of probable cause that attached to the proceedings following the preliminary revocation hearing on both parole detainer warrants. The proposed claim also alleges sufficient facts that, if found to be true, establish malice (see Santoro v Town of Smithtown, 40 AD3d 736, 738 [2d Dept 2007] [actual malice established where an official deliberately acts with awareness of "conscious falsity"] [citations omitted]). The proposed claim includes allegations that defendant's agents filed false charges against claimant in support of the parole detainer warrants and otherwise acted in bad faith when issuing the warrants (see Proposed Claim ¶¶ 10, 14).
The Court notes that, when deciding a late claim application brought pursuant to Court of Claims Act § 10 (6), the Court "generally takes as true factual allegations of [claimant]" (Williams v State of New York, UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]). Accordingly, the Court finds that claimant has met his burden in establishing the appearance of merit of his claims for wrongful confinement and malicious prosecution.
"The mix of circumstances presented by this case fall well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L 1976, ch 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicated a strong concern that litigants with meritorious claims be afforded their day in court" (Garcia v State of New York, UID No. 2021-040-013 [Ct Cl, McCarthy, J., Apr. 5, 2021], citing Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986] [additional citation omitted]). Accordingly, having weighed and considered the factors set forth under Court of Claims Act §10 (6), the Court exercises its discretion and hereby allows claimant to file and serve the proposed late claim against defendant.
The Court has considered the parties' remaining contentions and finds them either without merit or unnecessary to this determination.
Based upon the foregoing, defendant's motion to dismiss the claim (M-96214) is granted and claim number 135431 is dismissed. Claimant's cross motion to amend the claim (CM-96400) is denied. Claimant's motion for permission to file and serve a late claim (M-96610) is granted. Claimant is directed to file and serve a verified claim identical to the claim provided in support of motion number M-96610, in compliance with the Court of Claims Act, including the payment of a filing fee in accordance with section 11-a thereof, within sixty (60) days of the filing of this Decision and Order.
August 27, 2021
Hauppauge, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims
1. Claimant's affirmation in opposition to defendant's dismissal motion withdraws the claims for violations of the New York State Constitution, United States Constitution and 42 USC § 1983 (Affirmation in Support of Cross-Motion and in Opposition to Defendant's Motion, ¶ 4).
2. Unpublished decisions and selected orders of the Court of Claims are available at http://www.nyscourtofclaims.state.ny.us.
3. Both the first and second NIs served upon the OAG also fail to state a total sum claimed (Affirmation in Support of Defendant's Motion to Dismiss Claim, Exhibits B & C).