Opinion
# 2018-028-517 Claim No. 131193 Motion No. M-92242 Cross-Motion No. CM-92248
08-21-2018
ALLEN BROWN v. THE STATE OF NEW YORK
THE LAYTON LAW FIRM, PLLC BY: Paul Thomas Layton, Esq. HON. BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: Felice V. Torres, Esq. Assistant Attorney General
Synopsis
Motion by defendant to dismiss for failure to state a cause of action and cross-motion by claimant for leave to amend the claim. The motion to dismiss was denied as the claim sufficiently states a cause of action and the cross-motion was denied as not ripe.
Case information
| UID: | 2018-028-517 |
| Claimant(s): | ALLEN BROWN |
| Claimant short name: | BROWN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131193 |
| Motion number(s): | M-92242 |
| Cross-motion number(s): | CM-92248 |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | THE LAYTON LAW FIRM, PLLC BY: Paul Thomas Layton, Esq. |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: Felice V. Torres, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 21, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read on Defendant's motion to dismiss and Claimant's cross-motion for leave to amend the claim:
1. Notice of Motion dated April 16, 2018;
2. Affirmation of Felice V. Torres, Esq. dated April 16, 2018 with Exhibit A annexed;
3. Notice of Cross-Motion dated May 11, 2018;
4. Affirmation of Paul Thomas Layton dated May 6, 2018 with Exhibit A annexed;
5. Affirmation of Felice V. Torres, Esq. dated May 11, 2018.
Filed papers: Verified Claim.
Defendant has moved, pursuant to CPLR 3211, to dismiss the claim for failure to state a cause of action and for lack of jurisdiction.
On a motion to dismiss for failure to state a cause of action the pleading is afforded a liberal construction and the facts as alleged in the claim are accepted as true (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Furthermore, claimant is given the benefit of every possible favorable inference and the only determination to be made is whether the facts, as alleged, fit within any cognizable legal theory (id. at 87-88).
As alleged in the verified claim, this action arises from the acts or omissions of the defendant, State of New York, which led to claimant being held in custody for three days beyond his release date from a parole hold. To plead a cause of action for false imprisonment the party must allege that the defendant intended to confine him or her, that he or she was conscious of the confinement and did not consent to it, and that the confinement was not otherwise privileged (Hernandez v City of New York, 100 AD3d 433 [1st Dept 2012]). According to claimant, he was arrested on December 13, 2017 and held at Rikers Island Correctional Facility on charges that he violated the terms of his parole. On January 5, 2018 he appeared at a final parole revocation hearing. Claimant alleges that the specifications were not established and the parole hold was lifted thereby entitling him to release from custody that day. However, he was returned to Rikers Island Correctional Facility and not released until January 8, 2018.
Although the claim contains an allegation that claimant was held at Rikers Island after the hearing, he does not allege, as defendant contends, that he was in the custody and control of the City of New York Correction Department of Corrections. Rather, claimant has alleged that the named defendant was responsible for his intentional confinement. Not only must that allegation be accepted as true but even if claimant was in the custody of New York City, the allegations in the claim, arguably, may form the basis for imposing liability for false imprisonment on defendant (see Rivera v County of Nassau, 83 AD3d 1032 [2d Dept 2011], defendant actively importuned police to make arrest without reasonable cause to believe plaintiff culpable). In addition, claimant alleges that the confinement was not authorized and other allegations in the claim support inferences that claimant was aware of his confinement and did not consent to it.
The claim also references causes of action for negligence and violation of 42 USC § 1983. Any claim for negligence under the circumstances pleaded is subject to dismissal. A party seeking damages for wrongful detention "may not recover under broad principals of negligence ... but must proceed by way of the traditional remedies of false arrest and imprisonment" (Boose v City of Rochester, 71 AD2d 59, 62 [1979]; Simon v State, 12 AD3d 171, 171 [1st Dept 2004]). The principal serves the purpose of having a party's right to recovery determined by established rules defining the tort of false imprisonment, rules which permit an award only under circumstances in which the law regards the imprisonment as improper (Boose at 62). The claim for violation of 42 USC § 1983 is also subject to dismissal as the State is not a "person" acting under color of law within the meaning of that statute (Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]).
The motion to dismiss for lack of jurisdiction over the City of New York must be denied. While this court does not have jurisdiction over claims against the City of New York (see Court of Claims Act § 9), the city is not named as a defendant in the caption of the action and the body of the claim makes no reference to the municipality.
Claimant has cross-moved for leave to amend the claim. However, as defendant has not served an answer, claimant may amend the pleading as of right (CPLR 3025 [a]) and the motion is unnecessary.
Accordingly, it is
ORDERED, that the motion to dismiss is granted with respect to the causes of action based on negligence and violation of 42 USC § 1983 and is in all other respects denied and it is further
ORDERED, that the cross-motion for leave to amend is denied as not ripe.
August 21, 2018
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims