Opinion
# 2011-038-553 Claim No. 119998 Motion No. M-80167
09-07-2011
IBRAHIM BLACK v. THE STATE OF NEW YORK
Synopsis
Claim for wrongful confinement due to DOCS's imposition of PRS is dismissed for failure to state a cause of action, pursuant to Court of Appeals' decision in Donald v State of New York. State constitutional tort sounding in due process does not lie in the Court of Claims because claimant had remedies available in other forums. Case information
UID: 2011-038-553 Claimant(s): IBRAHIM BLACK Claimant short name: BLACK Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119998 Motion number(s): M-80167 Cross-motion number(s): Judge: W. BROOKS DeBOW Claimant's attorney: No Appearance ERIC T. SCHNEIDERMAN, Attorney General of the State Defendant's attorney: of New York By: Michael T. Krenrich, Assistant Attorney General Third-party defendant's attorney: Signature date: September 7, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
In this claim filed on June 22, 2011, claimant seeks compensation for a period of unlawful confinement resulting from the alleged illegal imposition of a period of post-release supervision (PRS) by the Department of Correctional Services (DOCS)following a judicially imposed sentence of incarceration. In lieu of answering the claim, defendant moves to dismiss the claim for failure to state a cause of action, on authority of Donald v State of New York (17 NY3d 389 [2011]). Despite being served with notice of the motion, claimant has not submitted opposition to the motion, and defendant's motion will therefore be granted upon default. Defendant is correct, however, in asserting that the claim fails to state a cause of action, although not necessarily for the reasons argued by defendant in support of the motion to dismiss the claim.
DOCS is now known as the Department of Corrections and Community Supervision (DOCCS). Inasmuch as the claim relates to acts that occurred prior to the name change, this decision will refer to the executive agency by its former name.
The claim alleges that after the completion of claimant's incarceration and while under PRS, claimant was found to be in violation of PRS and was incarcerated from February 2, 2009 through September 23, 2009. The claim seeks damages for those 233 days of incarceration, allegedly caused by the State's "wrongful, unlawful, and false confinement of claimant" (Claim No. 119998, ¶¶ 1, 6, 7, 10, 13). The claim asserts two causes of action, the first sounding in the common-law tort of wrongful confinement, and the second asserting a violation of claimant's State constitutional rights to due process.
The tort of wrongful confinement has the following four elements: "(1) the defendant intended to confine [the claimant], (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). Focusing upon the fourth element, a " 'detention, otherwise unlawful, is privileged where the confinement was by arrest under a valid process issued by a court having jurisdiction' " (Donald, at 395, quoting Davis v City of Syracuse, 66 NY2d 840, 842 [1985]). In this claim, because claimant has not challenged the validity of the process that resulted in his arrest for violating his PRS, the cause of action for wrongful confinement must be dismissed (see id., Hardy v State of New York, UID #2011-015-254, Claim No. 115615, Motion No. M-79813, Collins, J. [Aug. 19, 2011]).
Defendant's argument that the State is immune from liability for its discretionary determination to subject claimant to a period of PRS is applicable only to the extent that the claim may be read as asserting a cause of action sounding in negligence (see Donald, at 395). The instant claim does not expressly characterize DOCS's actions as negligent, but to the extent the claim may be so construed, the Court of Appeals has stated that "DOCS's actions in recording PRS terms as part of claimants' sentences were discretionary" (id.), and it held that the State is immune from liability for such a discretionary act (id., at 396). Therefore, to the extent this claim alleges negligence, it fails to state a cause of action.
The second cause of action asserted in the claim alleges that the same determination by DOCS to impose PRS violated claimant's State constitutional right to due process. Defendant's cursory contention that claimant's due process claim fails to state a cause of action because the Court of Claims has never asserted jurisdiction over a State constitutional tort claim other than search and seizure and equal protection claims is unavailing in the absence of any argument as to how or why an alleged violation of a claimant's State constitutional right to due process - also a State constitutional tort - is jurisdictionally defective. Nevertheless, a cause of action sounding in constitutional tort will lie in the Court of Claims only if the claimant has no other adequate remedy in another forum (see Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]; Carver v State of New York, 79 AD3d 1393, 1395 [3d Dept 2010]; Shelton v New York State Liq. Auth., 61 AD3d 1145, 1150 [3d Dept 2009]). Here, claimant's constitutional due process claim, which was addressed to an administrative determination by DOCS - could have been addressed in a proceeding pursuant to Article 78 of the CPLR (see Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, 194 [2007]; Bullard v State of New York, 307 AD2d 676, 678 [3d Dept 2003]). Thus, claimant's constitutional tort claim does not lie in this Court, and it must be dismissed.
Accordingly, it is
ORDERED, that Motion No. M-80167 is GRANTED, and Claim No. 119998 is DISMISSED.
September 7, 2011
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Claim No. 119998, filed June 22, 2011;
(2) Notice of Motion to Dismiss, dated July 25, 2011;
(3) Affirmation in Support of Motion to Dismiss of Michael T. Krenrich, AAG, dated
July 25, 2011, with Exhibit A;
(4) Affidavit of Service of Tara M. Noxon, sworn to July 25, 2011.