Opinion
# 2015-038-521 Claim No. 123205 Motion No. M-85989 Cross-Motion No. CM-86044
04-24-2015
COREY WRIGHT v. THE STATE OF NEW YORK
LAW OFFICE OF ANDREW C. LAUFER, PLLC By: Andrew C. Laufer, Esq. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Robert J. Schwerdt, AAG
Synopsis
Claimant's second motion to amend the claim denied, defendant's cross motion to dismiss the claim granted. To state a cause of action for false imprisonment or wrongful confinement due to a parole violation warrant that was subsequently vacated, claimant must plead that the warrant was facially invalid or was issued without jurisdiction to sufficiently plead a lack of privilege. The claim pursuant to Court of Claims Act § 8-b for unjust conviction is dismissed because the claim does not allege a wrongful conviction.
Case information
| UID: | 2015-038-521 |
| Claimant(s): | COREY WRIGHT |
| Claimant short name: | WRIGHT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123205 |
| Motion number(s): | M-85989 |
| Cross-motion number(s): | CM-86044 |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | LAW OFFICE OF ANDREW C. LAUFER, PLLC By: Andrew C. Laufer, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Robert J. Schwerdt, AAG |
| Third-party defendant's attorney: | |
| Signature date: | April 24, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This claim seeks damages resulting from claimant's incarceration upon a parole violation warrant. Claimant moves to amend the claim to change the theory of liability from unjust conviction pursuant to Court of Claims Act § 8-b to the common law torts of false imprisonment and wrongful incarceration. Defendant opposes the motion and cross-moves to dismiss the claim for failing to state a cause of action under Court of Claims Act § 8-b. Claimant opposes the cross motion.
The claim alleges that claimant was released to parole supervision in 2007, and that he was to reside in and be supervised pursuant to interstate compact by the Commonwealth of Virginia. It further alleges that in January 2013, the New York State Department of Corrections and Community Services (DOCCS), on the request of authorities in Virginia, issued a parole violation warrant and approved a Violation of Release Report containing three charges. It was asserted therein that claimant changed his address without his parole officer's permission (Charge 3), failed to report to his parole officer (Charge 2), and absconded from supervision (Charge 1) (see Laufer Affirmation, Exhibit D). Following a preliminary hearing on April 2, 2013, a Hearing Officer in Virginia found no probable cause for Charges 1 and 3, providing an explanation for such findings, and found that there was probable cause for Charge 2 without providing an explanation, and recommended that claimant be restored to parole supervision (see id., Exhibit E at 2). The claim alleges that on April 5, 2013, representatives of DOCCS "picked up" claimant and returned him to New York for a final revocation hearing (see Claim, ¶ 11), which was ultimately scheduled to be conducted May 6, 2013. In an Order and Decision dated June 28, 2013, Supreme Court, Bronx County (Lorenzo, J.) granted claimant's application for habeas corpus relief and ordered him restored to parole, finding that further litigation on Charge 2 was collaterally estopped by the prior proceedings in Virginia (see Laufer Affirmation, Exhibit H, at pp. 4-5). The claim alleges that "[a]s a result of this wrongful conviction, [claimant] was imprisoned from March 19, 2013 until June 27, 2013" (Claim, ¶ 16). The claim asserts that claimant sustained injuries "resulting from his unjust conviction and imprisonment on charges of a parole violation warrant" issued and lodged against claimant by DOCCS (Claim, ¶ 3).
Claimant moves to amend the claim by revising the claim to assert that the claim is for "false imprisonment and wrongful incarceration" (see Laufer Affirmation, Amended Claim, ¶ 3). Claimant asserts that the purpose of the amendment is to change the legal theory of liability from unjust conviction pursuant to Court of Claims Act § 8-b to false imprisonment and wrongful incarceration as permitted by Court of Claims Act § 9 (2). The proposed amended claim makes only one factual alteration to the filed claim, alleging that claimant did not by his own conduct bring about the false imprisonment, as compared to the allegation in the original claim that he did not bring about the wrongful conviction or imprisonment.
This motion is claimant's second attempt to amend the claim. By decision and order dated May 7, 2014, this Court, as pertinent to the instant motion, denied claimant's motion to amend the claim to include a cause of action for false arrest because (1) the allegations of the proposed amended claim did not allege that defendant's actions were without privilege, (2) to the extent that the proposed pleading alleged that claimant was brought into custody without probable cause, it contradicted itself as it alleged that probable cause was lacking as to two of the three charges, and (3) the proposed amended claim alleged that claimant was arrested pursuant to a parole warrant and there were no allegations that the warrant was facially invalid or that defendant lacked jurisdiction to issue the warrant (see Wright v State of New York, UID No. 2014-038-521 [Ct Cl, DeBow, J., May 7, 2014], p.4-5). Defendant opposes the instant motion on the ground that the proposed amended claim is virtually identical to the proposed claim that was submitted on the prior motion and claimant has not cured any of the pleading defects that were identified in the Court's earlier decision, and thus, the proposed amended claim has been adjudicated as insufficient as a matter of law. In reply, claimant argues that since Supreme Court, Bronx County, granted claimant's writ of habeas corpus and vacated the warrant, the warrant was rendered invalid, resulting in the confinement being not privileged, and his reply submission includes a revised proposed amended claim that includes an allegation of lack of privilege due to vacatur of the parole warrant. (see Laufer Affirmation in Support of Motion to Amend the Claim and in Opposition to Defendants Cross-Motion to Dismiss, [Proposed] Amended Claim, at ¶¶ 16, 18).
The proposed amended pleading must be examined to determine whether it would withstand a motion to dismiss pursuant to CPLR 3211 (a) (7) (see Lucido v Mancuso, 49 AD3d 220, 225 [2d Dept 2008]), and where the proposed amended pleading lacks factual allegations sufficient to make out all of the elements of a cause of action that is asserted therein, the proposed amendment is palpably insufficient as a matter of law and the motion to amend should be denied (see Beshara v Little, 215 AD2d 823 [3d Dept 1995]; see also Glynn v 177 W. 26th Realty LLC, 102 AD3d 558, 559 [1st Dept 2013]; Sears v First Pioneer Farm Credit, ACA, 46 AD3d 1282, 1286 [3d Dept 2007]). "The elements of a cause of action for false arrest or imprisonment are (1) an intentional confinement (2) of which plaintiff was conscious and (3) to which plaintiff did not consent, and (4) that was not otherwise privileged" (Guntlow v Barbera, 76 AD3d 760, 762 [3d Dept 2010], appeal dismissed 15 NY3d 906 [2010], citing Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]; Broughton v State of New York, 37 NY2d 451, 456-457 [1975], cert denied sub nom. Schanbarger v Kellogg 423 US 929 [1975]; see also Nazario v State of New York, 75 AD3d 715, 718 [3d Dept 2010], lv denied 15 NY3d 712 [2010]). Because a facially valid parole warrant issued by DOCCS provides officials acting upon it with the privilege to do so, a claim that asserts wrongful confinement on a parole warrant must also allege that the parole warrant was either facially invalid, or that DOCCS lacked jurisdiction to issue the warrant (see Donald v State of New York, 17 NY3d 389, 395 [2011]); Nazario v State of New York, 75 AD3d 715, 718 [3d Dept 2010], lv denied 15 NY3d 712 [2010]); Forshey v State of New York, 113 AD3d 985, 986 [3d Dept 2014]; Nastasi v State of New York, 275 App Div 524, 525 [3d Dept 1949], 300 NY 473 [1949] ["it does not necessarily follow . . . that a determination of illegality of imprisonment gives rise ipso facto to a claim for damages for false imprisonment" absent evidence that the parole warrant was facially invalid]).
The revised amended claim submitted by claimant on this motion includes a general allegation that the confinement was without privilege, but it does not allege that the parole warrant was vacated by Supreme Court because of facial insufficiency or lack of jurisdiction, and accordingly, it does not sufficiently plead a lack of privilege. Thus, the proposed amended claim is insufficient as a matter of law, and claimant's motion to amend the claim will be denied.
Defendant cross-moves to dismiss the filed claim that asserts unjust conviction on the ground that it fails to state a cause of action because it does "not allege that [claimant] was convicted of a crime, served all or part of his sentence, and did not commit the acts in the underlying criminal instrument" (Schwerdt Affirmation, ¶ 9). In reply, claimant "does not dispute that his claim may not fall within [Court of Claims Act §8-b]" (Laufer Affirmation in Support of Motion to Amend the Claim and in Opposition to Defendants Cross-Motion to Dismiss, at p.1).
On a motion to dismiss for failure to state a cause of action:
"claimant's claim is liberally construed and all facts asserted therein, as well as its submissions in opposition to defendant's motion, are accepted as true (see CPLR 3026; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; see also Nonnon v City of New York, 9 NY3d 825, 827 [2007]; State of New York v Shaw Contract Flooring Servs., Inc., 49 AD3d 1078, 1079 [2008]). Where, as here, the motion is premised upon claimant's failure to state a claim (see CPLR 3211[a][7] ) . . . the dispositive inquiry is whether it has a cause of action and not whether one has been stated, i.e., "whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; accord Nonnon v City of New York, 9 NY3d at 827)."
(IMS Engrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [3d Dept 2008], lv denied 11 NY3d 706 [2008]). The Court of Claims Act provides in relevant part that "[in] order to present the claim for unjust conviction and imprisonment, claimant must establish by documentary evidence that . . . he has been convicted of one or more felonies or misdemeanors against the state and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence" (Court of Claims Act § 8-b [3], [3] [a]). Deeming all of the facts in the filed claim as true, it is clear that claimant has failed to state a claim for unjust conviction under Court of Claims Act § 8-b inasmuch as his imprisonment arose not from a conviction, but from claimant's re-incarceration resulting from a parole violation warrant.
Accordingly, it is
ORDERED, that claimant's motion number M-85989 is DENIED; and it is further
ORDERED, that defendant's cross motion number CM-86044 is GRANTED, and claim number 123205 is hereby DISMISSED.
April 24, 2015
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Verified Claim, filed September 12, 2013; (2) Verified Answer, filed October 30, 2013; (3) Decision and Order in Wright v State of New York, UID No. 2014-038-521 (Ct Cl, DeBow, J., May 7, 2014); (4) Notice of Motion to Amend the Claim (M-85989), dated November 24, 2014; (5) Affirmation of Andrew C. Laufer, Esq., in Support of Motion to Amend the Claim, dated November 24, 2014, with Proposed Amended Claim and Exhibits A-H; (6) Notice of Cross Motion (CM-86044), dated December 8, 2014; (7) Affirmation of Robert J. Schwerdt, AAG, dated December 8, 2014, with Exhibit A; (8) Affirmation of Andrew C. Laufer, Esq., in Support of Motion to Amend the Claim and in Opposition to Defendant's Cross Motion to Dismiss, dated January 9, 2015,with Proposed Amended Claim and Exhibits A-H; (9) Affirmation of Robert J. Schwerdt, AAG, in Opposition and Reply, dated January 20, 2015.