Opinion
# 2021-032-048 Motion No. M-96287
05-15-2021
MICHAEL CAPERS v. STATE OF NEW YORK
Held & Hines, LLP By: Philip M. Hines, Esq. Hon. Letitia James, Attorney General By: Charles Lim, AAG
Synopsis
Motion to treat notice of intention as a claim pursuant to Court of Claims Act § 10 (8) is granted.Motion for late claim relief denied.
Case information
| UID: | 2021-032-048 |
| Claimant(s): | MICHAEL CAPERS |
| Claimant short name: | CAPERS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-96287 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Held & Hines, LLP By: Philip M. Hines, Esq. |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Charles Lim, AAG |
| Third-party defendant's attorney: | |
| Signature date: | May 15, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant has filed the instant motion for permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6) alleging causes of action sounding in negligence, denial of due process and wrongful confinement as the result of a false positive urinalysis test result for buprenorphine on April 22, 2019. Movant was issued a misbehavior report on that same date. A Tier II disciplinary hearing was held on May 2, 2019 and May 10, 2019. On May 10, 2019, claimant was found guilty of violating Rule 113.24 (drug use) and sentenced to 30 days confinement in his cell among other penalties. He was released from cell confinement on June 9, 2019. Movant appealed the Tier II hearing determination and on September 16, 2019, the appeal was granted and the disciplinary charges and penalties were reversed and expunged from his record. Movant alleges that New York State Department of Corrections and Community Supervision (DOCCS) officials recognized systemic testing errors that resulted in several false positive test results for the presence of buprenorphine. Disciplinary charges and penalties for several inmates were reversed and expunged as a result. Defendant opposes the motion.
The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept. 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act § 10 [6]). These factors are: (1) whether the delay in filing the claim was excusable; (2) whether the state had notice of the essential facts constituting the claim; (3) whether the state had an opportunity to investigate the circumstances underlying the claim; (4) whether the state was substantially prejudiced; (5) whether the claimant has any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act § 10 [6]). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys ., 55 NY2d 979 [1982]). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the movant's application (Savino v State of New York, 199 AD2d 254 [2d Dept. 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept. 1986]).
Before determining whether the claim is timely under CPLR Article 2, the Court will first address the cause of action for negligence. Claims alleging wrongful confinement generally sound in intentional tort (see Gittens v State of New York, 132 Misc 2d 399, 407 [Ct Cl 1986]), except in a narrow set of circumstances where defendant's alleged conduct may be characterized as unintentional, such as a misapplication of DOCCS rules governing or computation errors (see Ramirez v State of New York, 171 Misc 2d 677, 682 [Ct Cl 1997]). No such circumstance exists here. Therefore, movant may only avail himself of the intentional tort remedy of wrongful confinement (Nazario v State of New York, 75 AD3d 715 [3d Dept. 2010], lv denied 15 NY3d 712 [2010]; Simon v State of New York, 12 AD3d 171 [1st Dept 2004]; Francischelli v State of New York, UID No. 2020-038-544 [Ct Cl, DeBow, J., July 10, 2020]).
Unpublished decisions and selected orders of the Court of Claims are available at http://www.nyscourtofclaims.state.ny.us.
Before addressing the six statutory factors, the Court must determine whether movant's causes of action for wrongful confinement and denial of due process are timely under CPLR Article 2 (Court of Claims Act § 10 [6]).
The wrongful confinement cause of action accrued on June 9, 2019, the date that movant was released from cell confinement and the one year statute of limitations set forth in CPLR 215 applies (Roots v State of New York, UID No. 2017-038-543 [Ct Cl, DeBow, J., June 15, 2017]). On March 20, 2020, in response to the coronavirus public health emergency, Governor Cuomo issued Executive Order No. 202.8, which, among other things, directed that "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to [certain state laws], any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020" (Executive Order No. 202.8, dated Mar. 20, 2020 [9 NYCRR 8.202.8] [emphasis added]). That directive was extended through successive Executive Orders, with the final extension through and including "November 3, 2020, and after such date any such time limit will no longer be tolled" (Executive Order No. 202.67, dated Oct. 4, 2020 [9 NYCRR 8.202.67]). Accordingly, claimant's time to commence this action was tolled on March 20, 2020, at which time claimant had 81 days remaining to commence such an action. The statute of limitations began running again on November 4, 2020, and claimant's time to file and serve the instant motion expired on January 25, 2021. As claimant filed the instant motion on December 14, 2020, it is timely under CPLR 214. Claimant's cause of action for a denial of due process, a State constitutional tort, is governed by a three year statute of limitations (CPLR 214 [5]), and is also timely.
The Court notes that 81 days after November 4, 2020 fell on Sunday, January 24, 2021, and thus movant's time to file a motion for permission to file a late claim was extended by operation of law to Monday, January 25, 2021 (see General Construction Law § 25-a [1]). --------
As to the first factor, movant attributes the failure to timely file a claim to two excuses. First, that movant prepared a notice of intention to file a claim but failed to serve it due to his wrongful confinement from May 10, 2019 through June 9, 2019. The Court does not consider this a reasonable excuse as the claim did not accrue until June 9, 2019, when movant was released from confinement. Thus, movant's confinement before that date could not have contributed to his failure to timely file a claim with the prescribed time limitations.
Movant's second excuse is that counsel was not retained until December 2019, at which point the 90-day limitations period set forth in Court of Claims Act § 10 (3; 3-b) had already expired. This excuse is also insufficient, as it is well-settled that a movant's delay in retaining counsel is not an acceptable excuse for failing to timely file a claim (see Simpson v State of New York, 96 AD2d 646, 646 [3d Dept. 1983]; Francischelli v State of New York, UID No. 2020-038-544 [Ct Cl, DeBow, J., July 10, 2020]). Therefore, the Court finds that this factor does not weigh in movant's favor.
The next three factors--defendant's notice of the issues, opportunity to investigate, and prejudice--are interrelated and therefore frequently considered together. Movant argues that defendant had notice of the essential facts constituting the claim and an opportunity to investigate because DOCCS conducted movant's Tier II disciplinary hearing and generated several documents thereafter. DOCCS subsequently investigated the issue of false positives produced by urinalysis tests and reversed and expunged movant's charges and penalties on September 16, 2019. For these reasons, movant also argues that the State would not be prejudiced if the Court allowed the filing of a late claim. The State does not offer any arguments to refute movant's arguments as to these three factors. Therefore, the three aforementioned factors weigh in movant's favor (see Davis v State of New York, UID No. 2018-032-20 [Ct Cl, Hard, J., Mar. 23, 2018]).
The fifth factor to be considered is whether movant has any other available remedy. Here, movant admits that a claim can be interposed against the manufacturer and provider of the drug testing equipment used at the correctional facility. Indeed, defendant provides the Court with docket information for one class action lawsuit and two individual lawsuits pending in Federal court against Microgenics Corporation and Thermo Fisher Scientific arising out of false positive test results generated by the urinalysis tests at issue here (Affirmation of Charles Lim, AAG ¶ 45). As movant could presumably participate in the class action lawsuit or bring an individual suit against the manufacturer of the urinalysis testing device, the Court finds that this factor does not weigh in movant's favor (see Francischelli v State of New York, UID No. 2020-038-544 [Ct Cl, DeBow, J., July 10, 2020]).
Turning then to the final factor, in order to establish a meritorious cause of action, movant must establish that his claim is not "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Court of Claims Act § 10 [6]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). "While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require [m]ovant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit [him] to file a late claim" (Williams v State of New York, UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]; see Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11-12). However, a late claim application should not be granted where a claim is "legally deficient . . . [and] would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request" (Prusack v State of New York, 117 AD2d at 730).
To establish a claim of wrongful confinement, "claimant [is] required to show that (1) defendant intended to confine him, (2) he was conscious of the confinement, (3) he did not consent to the confinement, and (4) such confinement was not otherwise privileged" (Cass v State of New York, 134 AD3d 1207, 1208 [3d Dept. 2015], lv dismissed 27 NY3d 972 [2016] [internal quotation marks and citations omitted]; accord Miller v State of New York, 124 AD3d 997, 998 [3d Dept. 2015]).
It is well established that the State is accorded absolute immunity for the actions of its hearing officers charged with presiding over disciplinary hearings. This immunity covers the discretionary conduct of hearing officers due to the quasi-judicial nature of such conduct, even if that discretion was erroneously exercised or the resultant findings were subsequently overturned (see Arteaga v State of New York, 72 NY2d 212 [1988]; Holloway v State of New York, 285 AD2d 765 [3d Dept. 2001]). Absolute immunity may be lost, however, if the State acted in contravention of a governing rule or regulation which caused claimant to suffer actual prejudice or a deprivation of his due process rights (see Watson v State of New York, 125 AD3d 1064 [3d Dept. 2015]; Davidson v State of New York, 66 AD3d 1089 [3d Dept. 2009]).
First, the Court will address movant's allegations that DOCCS violated its own drug testing directives set forth at 7 NYCRR § 1020.4. "To the extent that [a] claimant asserts that drug testing directives were violated, they do not relate to the due process concerns of the hearing and do not serve as a basis for the wrongful confinement cause of action" (Miller v State of New York, 156 AD3d 1067, 1068 [3d Dept. 2017]). Accordingly, the State retains absolute immunity for its failure to adhere to drug testing directives found in its regulations regarding inmate disciplinary proceedings (Ramirez v State of New York, 175 AD3d 1635, 1637-1638 [3d Dept. 2019], lv denied 35 NY3d 902 [2020]; see also Haddock v State of New York, UID No. 2018-054-015 [Ct Cl, Rivera, J., Mar. 27, 2018]).
Movant further alleges several due process violations committed by defendant at movant's disciplinary hearing.
First, movant alleges that defendant violated 7 NYCRR § 253.6 (c) by excluding exculpatory evidence that movant offered or attempted to offer at the disciplinary hearing; by failing to allow movant to reply orally to the charge at the disciplinary hearing; and by failing to allow movant to submit relevant documentary evidence or written statements on his behalf. Movant also alleges that he was denied the right to call witnesses in violation of 7 NYCRR § 253.5. The Court notes that movant's assertion that the hearing officer failed to allow movant to reply orally to the charge is clearly meritless as movant's Tier II hearing packet (Affirmation of Charles Lim, AAG, Exhibit B), includes a Hearing Record Sheet which shows that movant pleaded not guilty at the hearing.
As to movant's allegations concerning the hearing officer's refusal to allow certain evidence or testimony from witnesses, such allegations may only remove the cloak of absolute immunity if movant can show that the outcome of the hearing would have been different if the violation had not occurred (Moustakos v State of New York, 133 AD3d 1268, 1269 [4th Dept. 2015]). Movant argues that he sought to introduce evidence and call witnesses to testify that his sample may have been contaminated or that the testing equipment was malfunctioning. Movant also sought to introduce evidence that DOCCS officials should have known there was an issue with the testing equipment because the two urinalysis samples taken before movant's were also positive for buprenorphine. These allegations do not explain how such evidence or testimony would have changed the outcome of the hearing. Importantly, movant's charges and penalties were reversed and expunged because "a cross reactivity issue may have existed in regards to the Buprenorphine II assay used in testing" (Lim Aff., Exhibit B). Therefore, the charges and penalties were reversed and expunged "in the interest of fairness" (id.), not due to any violation by defendant of any hearing rule or regulation. Accordingly, movant has failed to establish that defendant violated any applicable rules or regulations in such a way that would have affected the hearing outcome (Keenan v State of New York, UID No. 2020-041-046 [Ct Cl, Milano, J., Dec. 7, 2020], quoting Loret v State of New York, 106 AD3d 1159, 1159-60 [3d Dept. 2013], lv denied 22 NY3d 852 [2013]; see also DeJesus v State of New York, UID No. 2019-058-034 [Ct Cl, Leahy-Scott, J., Nov. 15, 2019] [denying late claim application where movant failed to establish how purported testimony of an excluded witness would have resulted in a not guilty finding]). Moreover, any challenges to the hearing officer's decisions in managing the testimony taken at the hearing implicate the hearing officer's discretionary determinations, which are protected by absolute immunity (Diaz v State of New York, 155 AD3d 1279, 1281 [3d Dept. 2017], lv denied 30 NY3d 1101 [2018]; see also Pittman v State of New York, UID No. 2008-018-623 [Ct Cl, Fitzpatrick, J., May 2, 2008] [hearing officer's decision not to call certain witnesses was a discretionary determination for which the State cannot be held liable]).
Next, the proposed claim alleges that defendant violated 7 NYCRR § 251-3.1 (c) by failing to delineate the required content in the misbehavior report and 7 NYCRR § 251-3.1 (d) by failing to provide language that must be included in the misbehavior report, including the right to call witnesses. The misbehavior report is included in the Tier II hearing packet (Lim Aff., Exhibit B), and it contains all of the information required by 7 NYCRR § 251-3.1 (c). As to the alleged violation of 7 NYCRR § 251-3.1 (d), even assuming that the misbehavior report failed to include such language, it is apparent that movant was well aware of his right to call witnesses at the disciplinary hearing, and therefore it is clear that the failure to include language apprising movant of his right to call witnesses did not affect the hearing outcome. Movant's assertion that defendant violated 7 NYCRR § 251-4.1 (a) (3) by failing to afford movant the opportunity to select an inmate assistant is flatly contradicted by the Tier II hearing packet, which shows that movant selected Correction Officer Hillard to assist him with the hearing (Lim Aff., Exhibit B). Movant also argues that defendant violated 7 NYCRR § 253.1 by failing to properly select a hearing officer. 7 NYCRR § 253.1 mandates that the selected hearing officer be impartial, but movant fails to set forth any credible argument as to how the hearing officer did not act impartially (see Flores v State of New York, UID No. 2017-044-538 [Ct Cl, Schaewe, J., May 2, 2017] [holding that bias cannot be inferred simply because a hearing officer rules against an inmate]).
Lastly, movant argues that defendant violated 7 NYCRR § 253.6 (a) by failing to serve the misbehavior report on movant at least 24 hours prior to the start of the disciplinary hearing; 7 NYCRR § 253.6 (a) by failing to delay the start of the disciplinary hearing the appropriate length of time after the assignment of an assistant; and 7 NYCRR § 253.6 (b) by failing to electronically record the disciplinary hearing. The first aforementioned violation in this paragraph is flatly contradicted by the Tier II hearing packet, which shows that movant was served with the misbehavior report on April 23, 2019 and the disciplinary hearing commenced on May 2, 2019. 7 NYCRR § 253.6 (a) requires that a hearing cannot be held until at least 24 hours after an inmate's meeting with their selected assistant. Although it appears that movant's disciplinary hearing began on the same day that he was assigned an assistant, the record also reflects that the hearing was adjourned on May 2, 2019 to allow movant time to meet with his assistant and gather evidence. In any case, movant does not set forth any argument as to how this delay affected the hearing outcome (Matter of Govan v Goord, 22 AD3d 928, 929 [3d Dept. 2005]). Lastly, defendant provides the affidavit of Angela Iocovello, Inmate Records Coordinator I at Eastern Correctional Facility, who avers that she has located a tape recording of movant's disciplinary hearing (Lim Aff., Exhibit C). Although movant argues that the tape recording does not include the end of the hearing where a verdict and sentence was rendered, he cannot claim prejudice from such exclusion as the parties do not dispute what the verdict and sentence was (Matter of Berrios v Kuhlmann, 143 AD2d 475, 477 [3d Dept. 1985] [allegation that a disciplinary hearing was not fully recorded is academic where there is no dispute as to the content of the non-recorded portion]).
To the extent that movant seeks to challenge "the efficacy of the urinalysis test, whether the process in selecting the new urinalysis test was arbitrary and capricious, and whether the testing methodology selected by DOCCS and the manner the test was conducted constituted substantial evidence" such challenged must be brought by an Article 78 proceeding in Supreme Court (Tomon v State of New York, UID No. 2020-051-033 [Ct Cl, Martin, J., Dec. 11, 2020], citing Matter of Lahey v Kelly, 71 NY2d 135, 138 [1987]; Matter of Cushman v Venettozzi, 186 AD3d 1041 [4th Dept. 2020]; Matter of Wade v Venettozzi, 153 AD3d 1649, 1650 [4th Dept. 2017]; Matter of Robinson v Herbert, 269 AD2d 807, 807 [4th Dept. 2000]). Movant's cause of action for denial of due process in violation of the State constitution is also barred where, as here, he has an alternate legal remedy by bringing a cause of action for wrongful confinement (Anselmo v State of New York, UID No. 2019-015-142 [Ct Cl, Collins, J., May 15, 2019]). Thus, the Court finds that movant has failed to establish the appearance of merit of the proposed claim.
In consideration of the six factors enumerated in Court of Claims Act § 10 (6), movant's motion for late claim relief is denied (M-96287).
May 15, 2021
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Petition, dated December 14, 2020; and Affirmation in Support, affirmed by Philip M. Hines, Esq. on December 14, 2020, with Attachments. 2. Affirmation in Opposition to Motion for Permission to File a Late Claim, affirmed by Charles Lim, AAG on January 21, 2021 with Exhibit A through C annexed thereto. 3. Affirmation in Reply, affirmed by Philip M. Hines, Esq. on February 1, 2021, with Exhibits A through B annexed thereto.