Opinion
# 2019-041-037 Claim No. 127912 Motion No. M-93532
07-02-2019
MARK N. BARDIN v. THE STATE OF NEW YORK
BRENNAN & WHITE LLP By: Joseph R. Brennan, Esq. HON. LETITIA JAMES New York State Attorney General By: Christina Calabrese, Esq. Assistant Attorney General
Synopsis
Defendant's second motion for summary judgment dismissing wrongful confinement claim on the ground that claimant's confinement pursuant to parole revocation warrant was privileged is denied because defendant fails to set forth sufficient basis for consideration of second summary judgment motion and because an issue of fact exists as to why claimant remained confined for 19 days after defendant was notified, and acknowledged in writing, that the mistaken and unfounded criminal charge, which was the sole basis of the Parole Revocation Warrant, had been dismissed.
Case information
| UID: | 2019-041-037 |
| Claimant(s): | MARK N. BARDIN |
| Claimant short name: | BARDIN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127912 |
| Motion number(s): | M-93532 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | BRENNAN & WHITE LLP By: Joseph R. Brennan, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General By: Christina Calabrese, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 2, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant for a second time moves pursuant to CPLR 3212 to dismiss this wrongful confinement claim for failure to state a cause of action. Claimant opposes the defendant's motion.
Defendant's previous motion for summary judgment dismissing the claim was denied (Bardin v The State of New York, UID# 2017-041-077, Claim No. 127912, Motion No. M-90883 [Milano, J., October 30, 2017]) on the following grounds: Defendant failed to satisfy its initial summary judgment burden of proof by failing to submit the Parole Revocation Warrant on which its motion was based; the claimant was entitled to a deposition of the defendant pursuant to CPLR 3212 (f) to determine why defendant delayed releasing claimant from confinement for nineteen (19) days after proof of the criminal charge dismissal which was the basis of the parole revocation warrant was provided to defendant; and an issue of fact was raised as to why claimant remained confined for 19 days after defendant was notified, and acknowledged in writing, that the mistaken and unfounded criminal charge which was the sole basis of the Parole Revocation Warrant had been dismissed.
The salient facts underlying the claim are not in dispute. The claimant, via the claim and the affirmation submitted by his attorney, alleges that the defendant caused the claimant/parolee to be wrongfully confined at the Washington County Correctional Facility from May 8, 2015 to May 27, 2015 based upon a Parole Revocation Warrant which had been issued after claimant was charged with Criminal Possession of Stolen Property in the Fourth Degree. The claimant alleges that he should have been promptly released from confinement after the defendant was notified that the criminal charge, which was the sole basis of the Parole Revocation Warrant, had been dismissed by the local criminal court on May 8, 2015, because the criminal charge against claimant was the result of a computer error of the Washington County Department of Social Services.
Defendant argues that the claim fails to state a cause of action for wrongful confinement of claimant at the Washington County Correctional Facility until May 27, 2015 because the confinement was "privileged" in that defendant was acting pursuant to a "facially valid warrant."
As set forth above, defendant's previous motion for summary judgment dismissing the claim was denied.
The law is clear that "successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause" (Tingling v C.I.N.H.R., Inc., 120 AD3d 570, 570 [2d Dept 2014]).
In MLCFC 2007-9 ACR Master SPE, LLC v Camp Waubeeka, LLC (123 AD3d 1269, 1271 [3d Dept 2014]), the court cites Vinar v Litman (110 AD3d 867, 868-869 [2d Dept 2013]) for the proposition that "evidence is not 'newly discovered' simply because it was not submitted on the previous motion. Rather, the evidence that was not submitted in support of the previous summary judgment motion must be used to establish facts that were not available to the party at the time it made its initial motion for summary judgment and which could not have been established through alternative evidentiary means."
Further, in Consolidated Mortg., LLC v Westport Golf Investors, LLC (141 AD3d 923, 925 [3d Dept 2016], lv dismissed 28 NY3d 1102 [2016]), the court instructs that "[a]bsent sufficient cause for advancing the successive motions for summary judgment, [claimant's] application could have been denied on this basis alone."
Defendant has failed to identify or offer any "newly discovered evidence or other sufficient cause" (Tingling, 120 AD3d at 570) to warrant consideration of a second summary judgment motion.
Here, defendant offers no newly discovered evidence but instead offers a copy of the Parole Revocation Warrant upon which its assertion of privilege from liability for wrongful confinement is based. The Parole Revocation Warrant was available to defendant at the time it made its prior summary judgment motion and does not constitute "newly discovered evidence or other sufficient cause" (Tingling, 120 AD3d at 570).
The defendant's second motion for summary judgment is denied.
Even were the defendant's second summary judgment motion not barred by case law, it is denied because a question of fact requiring a trial exists as to whether defendant acted reasonably after learning on May 8, 2015 that the Parole Revocation Warrant lacked a factual basis.
The defendant's own exhibits show that the criminal charge underlying the Parole Revocation Warrant was based upon claimant's alleged use of another individual's Washington County Department of Social Services benefit card. The Parole Revocation Specialist handling the claimant's parole supervision case for defendant, in his "Supplementary Parole Revocation Specialist Recommendation," dated May 11, 2015, stated that:
"The sole basis for the violation is [claimant's] alleged involvement in the criminal case. On 5/7/15, the Washington County District Attorney's office notified this writer that the criminal charges were being dismissed. The basis for the dismissal was that the Department of Social Services made an error in their computer entry, causing Mr. Bardin to obtain another person's benefits. The criminal case has been dismissed by the Honorable Roger Forando on 5/8/15."
(Emphasis added)
The defendant's "Bureau Chief" also signed the "Supplementary Parole Revocation Specialist Recommendation" on May 11, 2015.
Despite actual knowledge, as early as May 8, 2015 and as late as May 11, 2015, that the mistaken and unfounded criminal charge which was the sole basis of the Parole Revocation Warrant had been dismissed, defendant continued to confine claimant at the Washington County Correctional Facility until May 27, 2015.
Defendant argues that because the quantum of proof required for a finding of guilt at a parole violation hearing is less than that required in a criminal trial, and because defendant had ninety days to hold a parole revocation hearing, defendant is free from any potential wrongful confinement liability as a matter of law.
Significantly, defendant offers no proof that it had any lawful basis whatsoever, after dismissal of the criminal charge, to find claimant guilty of a parole violation no matter when such a parole violation hearing was held. Defendant's own submission (Exhibit D, p. 010) states that the parole "[d]elinquency" is canceled and claimant is restored to parole "[s]upervision" on May 11, 2015 based upon "[i]nsufficient basis to proceed to hearing."
Defendant seemingly argues that no matter how baseless a charged parole violation may be shown to be, pre-hearing, defendant is free to hold a parolee in jail until it holds a hearing and formally dismisses the alleged violation or until the time to hold such a hearing expires, however long that time period may be.
To summarize, the Court again finds that a question of fact exists, requiring a trial, to determine whether defendant acted reasonably in confining claimant for nearly three weeks after defendant was notified, and acknowledged in writing, that the mistaken and unfounded criminal charge which was the sole basis of the Parole Revocation Warrant had been dismissed.
The defendant's second motion for summary judgment dismissing the claim for failure to state a cause of action is denied.
July 2, 2019
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion, filed February 6, 2019; 2. Affirmation of Christina Calabrese, dated February 4, 2019, and annexed exhibits; 3. Affidavit in Opposition of Joseph R. Brennan, sworn to May 6, 2019.