Opinion
# 2019-028-501 Claim No. 131369 Motion No. M-92428 Motion No. M-92450
01-22-2019
RENE BONILLA v. THE STATE OF NEW YORK
RENE BONILLA, PRO SE HON. LETITIA JAMES, ATTORNEY GENERAL BY: Matthew H. Feinberg, Esq. Assistant Attorney General
Synopsis
Case information
| UID: | 2019-028-501 |
| Claimant(s): | RENE BONILLA |
| Claimant short name: | BONILLA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131369 |
| Motion number(s): | M-92428, M-92450 |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | RENE BONILLA, PRO SE |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Matthew H. Feinberg, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 22, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered on the pending motions:
1. Notice of Motion [M-92428];
2. Affirmation in Support by Matthew H. Feinberg, Assistant Attorney General;
3. Memorandum of Law and attached exhibits;
4. Reply to Motion to Dismiss [M-92428] by Rene Bonilla, Claimant;
5. Permission to File a Late Claim [M-92450] by Rene Bonilla, Claimant
6. Filed paper: Claim No. 131369.
Rene Bonilla, an inmate proceeding pro se, alleges in his claim that while he was incarcerated at Sing Sing Correctional Facility he was illegally strip frisked in violation of a New York State Department of Corrections and Community Supervision [DOCCS] policy directive, denied due process during his disciplinary hearing, and wrongfully confined to keeplock from March 12, 2017 to April 11, 2017.
More specifically, he alleges that on March 12, 2017 at approximately 9:00 p.m. he was taken to a shower and strip frisked, but no contraband was found. He was thereafter placed in an isolation room for a contraband watch and his cell was searched. Elsewhere in his claim he notes that officers allegedly observed him swallowing a clear plastic bundle, and that the search of his cell found marijuana. He asserts that all these actions were without probable cause, and in violation of Directive 4910 concerning such searches.
Mr. Bonilla indicates that after a disciplinary hearing, he was found guilty of drug possession, sentenced to 30 days keep lock and loss of privileges, and alleges that such conviction occurred because of the hearing officer's erroneous denial of documentary evidence he requested.
During his 30 day confinement, Mr. Bonilla filed a grievance concerning his placement in isolation for the contraband watch, his being denied a blanket or use of personal hygiene items, or a visit by health services staff, among other things. [Claim No. 131369, ¶8, Exhibit A]. He does not indicate how such grievance was resolved.
After his timely release, Mr. Bonilla asserts he filed an Article 78 proceeding on April 21, 2017. [Claim No. 131369,¶9, Exhibit B]. He does not indicate how the Article 78 proceeding was resolved.
Mr. Bonilla then alleges that "[o]n November 28, 2017, the Captain's Office reversed the hearing by advise (sic) of the Attorney General's Office due to the hearing tape being of poor quality and cannot be transcribed for review." [Claim No. 131369, ¶10].
A Notice of Intention to File a Claim [NI] was served on the Attorney General's office on May 10, 2017, reciting essentially the same foregoing facts, with a little less detail. [Feinberg Affirmation, ¶3, Exhibit A]. The claim itself was served on April 27, 2018, and filed in the office of the Chief Clerk of the Court of Claims on the same date.
Defendant moves by way of pre-answer motion to dismiss the claim, asserting that the intentional tort causes of action raised are all untimely, since the claim was not served either within 90 days of its accrual upon claimant's release from confinement, or within one year of accrual as required when a proper NI has been served. See Court of Claims Act §10(3-b). Although the NI timely preserved any potential causes of action adequately described therein because it was served within 90 days of the claim's last asserted accrual date of April 11, 2017, service of the claim on April 27, 2018 was nonetheless untimely for the intentional tort causes of action asserted.
The Court agrees. As described in the NI, all the defendant's conduct is intentional rather than negligent, from the alleged frisk and search, through the purportedly flawed disciplinary proceeding. The claim accrued, at the latest, when Mr. Bonilla was released from confinement on April 11, 2017. See generally Davis v State of New York, 89 AD3d 1287 (3d Dept 2011). Accordingly, the timely service of the NI within 90 days of Mr. Bonilla's release from confinement acted only to extend the time within which claimant could serve and file his claim to one year from accrual, rather than the two years allowed for negligent conduct. Service of the claim on April 27, 2018 was untimely.
Mr. Bonilla seeks late claim relief or, alternatively, asks that the NI he timely served be treated as a claim. See Court of Claims Act §§10(6), (8)(a). To obtain either type of relief, however, the motion must be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." [Ibid].
A motion is "made, when a notice of motion...is served." Civil Practice Law and Rules §2211. In this case, the motion was served on or about June 14, 2018, according to the affidavit of service. This is beyond the one year statute of limitations for a like citizen under the Civil Practice Law and Rules. See Civil Practice Law and Rules §215(3).
There are no allegations that it was negligent conduct that rendered the confinement wrongful, i.e., this is not a claim where it is alleged that some clerical error or other oversight kept claimant confined beyond the prescribed disciplinary confinement period for example. Instead, claimant asserts wrongful conduct in the initial searches and during the disciplinary hearing process, i.e.: defendant's alleged violation of a procedural due process right as set forth in the Correction Law and regulations. Correction Law §§112, 137; 7 NYCRR Parts 250 - 254. These are intentional tort causes of action and, therefore, the motion is not timely made, and is denied on that basis alone.
Based on the foregoing, defendant's motion to dismiss is hereby granted, and claimant's motion for late claim relief, or to have his NI treated as a claim, is in all respects denied.
January 22, 2019
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims