Opinion
# 2020-038-520 Motion No. M-94978
02-25-2020
ALFRED DORSETTE v. THE STATE OF NEW YORK
ALFRED DORSETTE, Pro se LETITIA JAMES, Attorney General of the State of New York By: Elizabeth A. Gavin, Assistant Attorney General
Synopsis
Claimant's motion to file and serve a late claim pursuant to Court of Claims Act § 10 (6) denied.
Case information
| UID: | 2020-038-520 |
| Claimant(s): | ALFRED DORSETTE |
| Claimant short name: | DORSETTE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-94978 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | ALFRED DORSETTE, Pro se |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Elizabeth A. Gavin, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 25, 2020 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual currently incarcerated in a State correctional facility, moves for permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6). The proposed claim alleges that claimant was wrongfully confined at Green Haven Correctional Facility (CF). Defendant opposes the motion on the ground that it is untimely.
The proposed claim alleges that on May 30, 2018, claimant was issued an inmate misbehavior report (IMR) charging him with violating disciplinary rule 113.24 (drug use) and was confined to his cell (see Proposed Claim, ¶ 3). The proposed claim alleges that on June 5, 2018, before the disciplinary hearing had commenced, the hearing officer requested that the time to complete the disciplinary hearing be extended to June 8, 2018, and that the request falsely stated that claimant had not yet met with his hearing assistant even though claimant had met with his hearing assistant on June 4, 2018 (see id. at ¶¶ 4-6). The proposed claim further alleges that the disciplinary hearing was not commenced on June 8, 2018, that on June 9, 2018, the hearing officer asked for another extension to June 12, 2018, and that the extension was granted (see id. at ¶¶ 7-9). The proposed claim alleges that "[t]he hearing officer made multiple further requests for an extension of time to commence and complete [the disciplinary hearing], all of which were based on the hearing officers [sic] unavailability" (id. at ¶ 10 [emphasis in original]). The proposed claim alleges that the last extension required that the hearing be commenced and completed by June 15, 2018 or reassigned if necessary (see id. at ¶ 10, Exhibit B). The proposed claim alleges that claimant was found guilty of violating disciplinary rule 113.24 on June 15, 2018 and received 60 days of keeplock confinement, 60 days loss of packages, commissary, and phone, and 120 days loss of recreation (see id. at ¶ 11, Exhibit C). According to the disciplinary determination, claimant's release date from keeplock was set for July 29, 2018, his packages, commissary, and phone privileges were to be restored on August 14, 2018, and his recreation privileges were to be restored on October 18, 2018 (see id., Exhibit C). The proposed claim alleges that claimant administratively appealed the determination on July 11, 2018 and that the determination was reversed on August 21, 2018 (see id. at ¶¶ 12-13). The proposed claim asserts that it "is for the tort of false imprisonment, also known as 'wrongful excessive confinement' . . . for the violation of the claimants [sic] constitutionally protected liberty interest to remain in the general prison population . . . by confining claimant without Due Process for no valid or legitimate penalogical [sic] reason or purpose" (id. at ¶ 2). The proposed claim alleges that defendant's agents negligently violated claimant's state and federal "substantive due process right to have his hearing conducted within seven days of his initial disciplinary confinement" (id. at ¶ 28) and seeks damages for 60 days of wrongful confinement in keeplock, and for 84 days of loss of recreation and pay from his mess hall job (see id. at ¶ 35).
Although the proposed claim seeks compensation for "[t]wenty-four days additional loss of recreation" above the 60 days claimant spent in keeplock (Proposed Claim, ¶ 35), for a total of 84 days, the imposition of loss of privileges is a separate penalty from confinement (see 7 NYCRR § 253.7 [a] [1] [ii], [iii]), and a claim for damages for loss of privileges does not sound in wrongful confinement (see e.g. Stewart v State of New York, UID No. 2017-038-108 [Ct Cl, DeBow, J., Aug. 22, 2017] [claim sounding in negligence for denial of recreational privileges]; Lamage v State of New York, UID No. 2007-015-565 [Ct Cl, Collins, J., Nov. 5, 2007 [cause of action for loss of recreation as a regulatory violation]; Velasquez v State of New York, UID No. 2004-030-508 [Ct Cl, Scuccimarra, J., Feb. 19, 2004] [claim for damages for allegedly wrongful imposition of seven days loss of recreational privileges sounding in state constitutional tort]; Rodriguez v State of New York, UID No. 2001-015-544 [Ct Cl, Collins, J., Nov. 15, 2001] [claim seeking damages for imposition of loss of recreation and phone privileges]). --------
In support of his motion for late claim relief, claimant asserts that the claim accrued on June 15, 2018 and that he "would not be barred from asserting a like claim against a citizen of the State" under CPLR article 2 (Dorsette Affidavit, ¶ 1). Defense counsel argues in opposition that the motion is untimely because this wrongful confinement claim sounds in intentional tort and, because the motion was filed more than one year after the accrual date of August 21, 2018 alleged in the proposed claim, the motion is untimely and must be denied (see Gavin Affirmation, ¶¶ 4, 6-7). Defense counsel further argues that the proposed claim sounds in intentional tort rather than negligence because although "the proposed claim alleges that the wrongful confinement at issue was negligent," it "contains no allegations that a computational error in determining [claimant's] disciplinary penalty or an error in timely releasing him from keeplock status" occurred (id. at ¶ 5). Defense counsel argues that "the allegations in the proposed claim are that during the course of [claimant's] disciplinary hearing, his due process rights were infringed upon by the hearing officer and his punishment in keeplock was not privileged" (id.). In reply, claimant argues that his proposed claim "clearly show[s] that the hearing officer negligently requested a[n] additional extension of time on June 9th, 2018, one day after the first extension had expired" (Dorsette Reply Affidavit, ¶ 4 [emphasis in original]) and that he does not allege in the proposed claim "that the hearing officer intentionally requested an extension of time to complete [his] hearing without [following] the guidelines for doing so" (id. at ¶ 5). Claimant further argues that the proposed claim clearly alleges that defendants negligently failed to protect his due process rights at the disciplinary hearing and that the applicable statute of limitations is thus three years under CPLR § 214 (5) (see id. at ¶¶ 6-7).
A motion for late claim relief must be filed "before an action asserting a like claim against a citizen of the state would be barred under the provisions of [CPLR article 2]" (Court of Claims Act § 10 [6]). The failure to file the motion within the prescribed time period is a jurisdictional defect that precludes the court from granting such a motion (see Matter of Miller v State of New York, 283 AD2d 830, 831 [3d Dept 2001]; Bergmann v State of New York, 281 AD2d 731, 733-734 [3d Dept 2001]; Williams v State of New York, 235 AD2d 776, 777 [3d Dept 1997], lv denied 90 NY2d 806 [1997]).
Claims alleging wrongful confinement in the context of incarceration in a correctional facility generally sound in intentional tort (see Gittens v State of New York, 132 Misc 2d 399, 407 [Ct Cl 1986]; Manuel v State of New York, UID No. 2018-038-561 [Ct Cl, DeBow, J., June 21, 2018]; Nanton v State of NewYork, UID No. 2017-038-578 [Ct Cl, DeBow, J., Oct. 12, 2017]) because the factual allegations in such claims usually state the elements of a cause of action for false imprisonment (see Martinez v City of Schenectady, 97 NY2d 78, 85 [2001] [defendant intended to confine plaintiff, who was conscious of the confinement and did not consent to it, and the confinement was not otherwise privileged]). In limited factual circumstances, such a claim may also sound in negligence where, for example, the claim alleges conduct that was "almost certainly unintentional," such as "unexplained or inadvertent mistakes in counting days; incorrect interpretation of rules governing when an inmate should be released; or a too-arbitrary computer program" (Ramirez v State of New York, 171 Misc 2d 677, 682 [Ct Cl 1997] [internal citations omitted]). The periods of limitations for institutional wrongful confinement will depend upon "whether the claim is predicated on intentional or negligent conduct" (Matter of Kairis v State of New York, 113 AD3d 942, 942 [3d Dept 2014]), and a court that is evaluating a cause of action for purposes of determining the applicable limitations period is not bound by a party's characterization of the nature of the cause of action, but must examine and determine the true gravamen of the cause of action (see Western Elec. Co. v Brenner, 41 NY2d 291, 293 [1977]; Gold v New York State Bus. Group, 255 AD2d 628, 630 n [3d Dept 1998]; Marine Midland Bank v Jerry Hamam, Inc., 96 AD2d 1137, 1138 [4th Dept 1983]).
Notwithstanding that the proposed claim alleges that defendant's agents negligently violated claimant's due process right to have his disciplinary hearing conducted within seven days of his initial confinement, it does not allege the type of conduct that typically sounds in negligence, such as the misapplication of the rules governing release or the miscalculation of a period of confinement (see e.g. Miller v State of New York, 124 AD3d 997, 998 [3d Dept 2015] [wrongful confinement claim sounding in negligence where DOCCS held claimant past his maximum release date while the conditions of his post-release supervision were finalized]; Staehly v State of New York, UID No. 2012-039-345 [Ct Cl, Ferreira, J., Dec. 3, 2012] [wrongful confinement claim sounded in negligence where the claim alleged that DOCCS employees incorrectly recorded that claimant received a five-year term of post-release supervision rather than a three-year term]). The claim thus clearly sounds in the intentional tort of wrongful confinement and is thus subject to a one year statute of limitations (see CPLR 215 [3]), and it accrues when the claimant is released from the allegedly wrongful confinement (see Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011]; Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 [2005]).
The proposed claim does not explicitly state when claimant was released from keeplock. However, inasmuch as the proposed claim alleges that claimant was originally confined on May 30, 2018, and seeks compensation for 60 days of keeplock, it can be inferred that claimant was released from keeplock on July 29, 2018 (see also, Proposed Claim, Exhibit C [7/29/18 keeplock release date]). Thus, the motion, which was filed November 26, 2019, well beyond the one-year statute of limitations for wrongful confinement, is untimely and must be denied. Further, to the extent that the claim states a viable cause of action sounding in intentional tort for the loss of claimant's privileges, it would have accrued on August 22, 2018 when claimant's privileges were restored, and thus, this motion is untimely as it was filed after the expiration of the one-year statute of limitations on August 22, 2019.
Accordingly, it is
ORDERED, that claimant's motion number M-94978 is DENIED.
February 25, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: 1. Notice of Motion for Permission to File a Late Claim, dated November 14, 2019; 2. Affidavit of Alfred Dorsette in Support of Motion for Permission to File a Late Claim, sworn to November 14, 2019, with Exhibits A-G; 3. Proposed Claim, dated November 14, 2019; 4. Affirmation of Elizabeth A. Gavin, AAG, in Opposition [to] Motion, dated January 29, 2020, with Exhibits 1-2; 5. Reply Affidavit of Alfred Dorsette in Support of Motion to File a Late Claim, sworn to February 13, 2020.