Opinion
# 2015-015-063 Claim No. 114404 Motion No. M-85882 Cross-Motion No. CM-86435
07-28-2015
BRONSON FRANK v. THE STATE OF NEW YORK
Hall and Karz By: Peter Rolph, Esquire Honorable Eric T. Schneiderman, Attorney General By: Jessica Hall, Esquire Anthony Rotondi, Esquire Assistant Attorneys General
Synopsis
Claimant was one of several sex offenders committed to a secure treatment facility pursuant to Mental Hygiene Law § 9.27 rather than Correction Law § 402. Although the Court of Appeals in Harkavy I held this determination was mistaken, it was a discretionary determination for which the defendant is immune from liability.
Case information
| UID: | 2015-015-063 |
| Claimant(s): | BRONSON FRANK |
| Claimant short name: | FRANK |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 114404 |
| Motion number(s): | M-85882 |
| Cross-motion number(s): | CM-86435 |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Hall and Karz By: Peter Rolph, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Jessica Hall, Esquire Anthony Rotondi, Esquire Assistant Attorneys General |
| Third-party defendant's attorney: | |
| Signature date: | July 28, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the claim for failure to state a cause of action and lack of jurisdiction pursuant to CPLR 3211 (a) (2), (7) and CPLR 3016. Claimant cross-moves to amend his claim to add individually named defendants.
In October 2005 the claimant was an inmate at Mid-State Correctional Facility (Mid-State) serving a sentence of 8½ to 25½ years upon his plea of guilty to three counts of burglary (second degree), three counts of sodomy (first degree) and one count each of petit larceny, attempted rape (first degree), attempted sexual abuse (first degree), attempted sexual abuse (first degree) and assault (second and third degree). The claim asserts, inter alia:
"the claimant having applied for and having complied with all rules governing his release on his conditional release date of October 26, 2005 as prescribed by statute, was not released from custody at the conclusion of his sentence on his recited conditional release date, but was rather transferred, without cause or legal authority, to the Manhattan Psychiatric Center" (Claim ¶4).
In fact, claimant was examined by two mental health professionals on October 25, 2005 and transferred to the Manhattan Psychiatric Center on October 26, 2005, upon application of the Mid-State Superintendent, pursuant to the procedures prescribed in Article 9 of the Mental Hygiene Law (Hospitalization of the Mentally Ill). Mental Hygiene Legal Services initiated a habeas corpus proceeding on behalf of the claimant and others arguing that, because each was an individual serving a sentence of imprisonment, the State was required to comply with the more extensive requirements of Correction Law § 402 (Commitment of Mentally Ill Inmates) in confining the petitioners, and that their confinement pursuant to Mental Hygiene Law § 9.27 was, therefore, illegal. Supreme Court granted the petition and ordered the petitioners' conditional release (State of N.Y. ex rel. Harkavy v Consilvio, 10 Misc 3d 851 [Sup Ct, NY County 2005]). The Appellate Division, First Department reversed (State of N.Y. ex rel. Harkavy v Consilvio, 29 AD3d 221 [1st Dept 2006]), largely holding that Correction Law § 402 applies only when it is contemplated or expected that an inmate will return to Department of Corrections and Community Supervision's (DOCCS) custody following commitment. As the return of the petitioners to DOCCS was not anticipated at the time of their commitment, the Appellate Division held that Correction Law § 402 was inapplicable, and the commitment accomplished by way of Mental Hygiene Law § 9.27 was appropriate, because "at the time of commitment, each petitioner was a free citizen no longer undergoing a sentence of imprisonment" (id. at 226). The Court of Appeals reversed, stating that although "we understand how in an attempt to protect the community from violent sexual predators, the State proceeded under the Mental Hygiene Law" (State of N.Y. ex rel. Harkavy v Consilvio, 7 NY3d 607, 614 [2006] [Harkavy I]), it agreed with Supreme Court that "the plain truth of the matter is that each of the petitioners were, in fact, imprisoned at the time of their civil commitment" (id. at 613, citation omitted). As a result, the Court held that "in the absence of a clear legislative directive in regard to inmates nearing their release from incarceration, we believe Correction Law § 402 is the appropriate method for evaluating an inmate for postrelease involuntary commitment to a mental facility" (id. at 614). The Court ordered that the petitioners be provided immediate retention hearings pursuant to Mental Hygiene Law Article 9 and directed that future candidates for involuntary commitment be processed pursuant to Correction Law § 402.
The Department of Correctional Services and the Division of Parole merged to become DOCCS on March 31, 2011.
Subsequent to the decision in Harkavy I, the Legislature enacted article 10 of the Mental Hygiene Law, which provides that offenders convicted of certain sexually based offenses shall be transferred to secure psychiatric hospitals after their release from prison if they suffer from a "mental abnormality" within the meaning of Mental Hygiene Law § 10.07. In State of N.Y. ex rel. Harkavy v Consilvio (8 NY3d 645 [2007] [Harkavy II]), the Court of Appeals held that the procedures set forth in article 10 of the Mental Hygiene Law, enacted after the petitioners were transferred to secure psychiatric hospitals, applied to them. The Harkavy II Court, therefore, remanded the matter for hearings in accordance with article 10, thereby entitling petitioners to a jury determination on the issue of "mental abnormality" (id. at 652). Harkavy II was decided on June 5, 2007.
Claimant alleges that following the Harkavy I decision on November 21, 2006, defendant "continued to unlawfully hold the Claimant in violation of his rights to be released and held the Claimant involuntarily past the completion of his sentence until July 16, 2007 when finally confronted with the report of Mirjana Blokar, MD that the Claimant did not suffer from any psychosis or severe mood disorder" (defendant's Exhibit A, Claim, ¶ 4 [D]). Claimant alleges that his confinement to MPC "was not authorized under any lawful authority and constituted an unlawful and illegal continuation of [his] incarceration" (id.).
Claimant also alleges that the defendant slandered and libeled him by publishing and republishing statements that he was " 'unfit for society' " and a " 'level three sex offender' ", asserting that "[t]hese publications and re-publications occurred as early as October 26, 2005 with public republishing as early as November 2, 2005 and continued republishing as recently known to have occurred on September 17, 2007 as contained in the Daily Messenger, a publication widely circulated in the area of the claimant's residence and beyond" (defendant's Exhibit A, claim, ¶ 4 [E]). Claimant alleges a litany of additional causes of action arising from his confinement to MPC, including: that he injured his shoulder in February 2007 and, at about the same time, developed an unrelated skin condition for which adequate medical care was not provided (id. at ¶ 4 [f]; that in confining claimant beyond his conditional release date defendant was negligent and violated the New York State Constitution (id. at ¶ 5); that defendant invaded his privacy and disclosed private facts; that he was falsely arrested and imprisoned; that he was the subject of a malicious prosecution and misuse of process and that he was the victim of harassment as well as psychiatric and medical malpractice (id. at ¶ 5; see also ¶¶ 6.1-6.18) .
Defendant contends in support of its motion that it is immune from liability for the alleged wrongful confinement of the claimant to MPC and that the claim otherwise fails to state a cause of action or meet the pleading requirements of Court of Claims Act § 11 (b). In support of his cross motion, claimant seeks to amend the claim to add individually named defendants, including former Governor George Pataki and 10 persons as yet unknown.
On a motion to dismiss a claim pursuant to CPLR 3211 (a) (7) the court is required to "accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). "While affidavits may be considered, if the motion has not been converted to a CPLR 3212 motion for summary judgment, they are generally intended to remedy pleading defects and not to offer evidentiary support for properly pleaded claims" (Nonnon v City of New York, 9 NY3d 825, 827 [2007], citing Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]). The determination is therefore made by reference to whether " 'the proponent of the pleading has a cause of action, not whether he has stated one' " (Leon v Martinez, 84 NY2d at 88, quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see also Dee v Rakower, 112 AD3d 204, 208 [2d Dept 2013]).
To establish a cause of action for wrongful confinement a claimant must show that "(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]; see also Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]; Miller v State of New York, 124 AD3d 997 [3d Dept 2015]). Assuming, for the purposes of the instant motion, that the facts alleged in the claim are true, they fail to state a wrongful confinement cause of action.
The wrongful confinement cause of action is premised on the contention that by proceeding pursuant to Mental Hygiene Law § 9.27 rather than Correction Law § 402 in facilitating his involuntary commitment, the State violated claimant's right to procedural due process. Indeed, in Bailey v Pataki (708 F3d 391 [2d Cir 2013]) the Second Circuit Court of Appeals held that inmates nearing the end of their sentences for sexually based offenses possessed a due process right to notice and an opportunity to be heard before being involuntarily committed to a psychiatric facility. Nevertheless, under New York Law, the State is immune from liability for discretionary conduct "even if resulting from negligence or malice" (Tango v Tulevech, 61 NY2d 34, 40 [1983]; see also McLean v City of New York, 12 NY3d 194 [2009] ["discretionary municipal acts may never be a basis for liability"]; Arteaga v State of New York, 72 NY2d 212 [1988] [State is immune from liability for discretionary conduct resulting in prisoners' unlawful confinement claims]). Discretionary conduct, i.e., conduct "involving the exercise of reasoned judgment" (Lauer v City of New York, 95 NY2d 95, 99 [2000]; Tango v Tulevech, (61 NY2d at 41), includes even erroneous judgments by State officials as to the scope of their own authority (Donald v State of New York (17 NY3d 389, 396 [2011]). Thus, the Court of Appeals held in Donald that the State was immune from liability arising from the improper imposition of postrelease supervision by the Department of Correctional Services (DOCS) rather than the sentencing courts, stating:
"DOCS was presented with a prisoner sentenced to a determinate prison term, for whom PRS was mandatory under state law. DOCS made the 'reasoned judgment' that it should interpret their sentences as including PRS, though the sentences rendered by the courts did not mention it. We held in Garner that that judgment was mistaken, but it clearly was just that--a mistake in judgment--not a ministerial error, like mistranscribing an entry or confusing the files of two different prisoners" (id. at 395).
Here, as in Donald, the State made the reasoned, albeit incorrect, judgment that under the circumstances then existing the Mental Hygiene Law was an appropriate vehicle for securing the involuntary commitment of inmates upon their release from prison. In fact, this view was shared, again, albeit mistakenly, by the Appellate Division. While the Court of Appeals ultimately held that Correction Law § 402 was the appropriate procedure for securing postrelease commitment, that does not change the fact that at the time the action was taken officials were faced with a choice of available procedures to effectuate commitment, those governing hospitalization of the mentally ill (Mental Hygiene Law § 9.27) and a separate procedure applicable to the commitment of mentally ill inmates (Correction Law § 402), both of which could reasonably have been interpreted as applying to the inmates affected. This is particularly true where, as here, there was an "absence of a clear legislative directive with regard to inmates nearing their release from incarceration" as noted by the Court of Appeals in Harkavy I. In such circumstances, it was incumbent upon DOCCS to use its judgment in selecting between the competing avenues for securing the inmates' commitment, "a normal and legitimate part of DOC's functions" and a classical exercise of discretion involving the exercise of reasoned judgment (Donald at 396). As a result, the decision to utilize the procedures prescribed in the Mental Hygiene Law rather than Correction Law § 402, although ultimately determined to be mistaken, was nonetheless a discretionary determination as to which the State is immune from liability.
Claimant's constitutional tort cause of action must be dismissed as alternative avenues of redress are available to vindicate his constitutional rights (Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]; Lyles v State of New York, 2 AD3d 694, 695 [2d Dept 2003], affd 3 NY3d 396 [2004]; Waxter v State of New York, 33 AD3d 1180 [3d Dept 2006]; Bullard v State of New York, 307 AD2d 676, 678 [3d Dept 2003]). Claimant sought and apparently succeeded in securing habeas corpus relief in the Supreme Court and could have proceeded pursuant to 42 USC § 1983 but apparently failed to do so (see Bailey v Pataki, supra). As a result, recognition of a constitutional tort cause of action is unnecessary.
To the extent the claim purports to assert a cause of action under 42 USC § 1983, this Court lacks jurisdiction as the State is not a "person" under the statute (Will v Michigan Dept. of State Police, 491 US 58, 66 [1989]; Flemming v State of New York, 120 AD3d 848 [3d Dept 2014]).
Insofar as the claim may be read to include causes of action for libel and slander, medical and professional malpractice, invasion of privacy, disclosure of private facts, false arrest, malicious prosecution, misuse of process and harassment, claimant raised no arguments in opposition to defendant's motion (see Countrywide Home Loans, Inc. v United Gen. Tit. Ins. Co., 109 AD3d 953, 955 [2d Dept 2013]; Patel v American Univ. of Antigua, 104 AD3d 568, 569 [1st Dept 2013]; Matter of Sharyn PP. v Richard QQ., 83 AD3d 1140, 1143 [3d Dept 2011]; Callisto Pharm., Inc. v Picker, 74 AD3d 545 [1st Dept 2010]).
In any event, these remaining causes of action are meritless as a matter of law. No cause of action for slander or libel arises from the allegation that claimant is a "level three sex offender" (defendant's Exhibit A, ¶ 4 [E]) because this allegation is true (see People v Frank, 37 AD3d 1043 [4th Dept 2007]). Nor is the statement that claimant is "unfit for society" actionable as it represents no more than an opinion incapable of being proven true or false (see Davis v Boeheim, 24 NY3d 262, 269 [2014]; Mann v Abel, 10 NY3d 271 [2008], cert. denied 555 US 1170 [2009]; Coe v Town of Conklin, 94 AD3d 1197 [3d Dept 2012]). Moreover, the claim fails to " 'sufficiently articulate the . . . time, manner and persons to whom the alleged defamatory statements were made' " and the proposed amended claim fares no better (Place v Ciccotelli, 121 AD3d 1378, 1380 [3d Dept 2014] [citations omitted]).
As for the malicious prosecution cause of action, the claim fails to state a cause of action because the claimant did not allege "facts sufficient to rise to the level of actual malice, i.e., 'some deliberate act punctuated with awareness of "conscious falsity" ' " (Hendrickson-Brown v City of White Plains, 92 AD3d 638 [2d Dept 2012][citation omitted]).
The claim similarly fails to allege sufficient facts to state a cause of action for abuse of process. The essential elements of a cause of action for abuse of process are: "1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective (Curiano v Suozzi, 63 NY2d 113, 116 [1984]; Place v Ciccotelli, 121 AD3d at 1380). Here, no facts are alleged which would permit the conclusion that the defendant issued process in a perverted matter to obtain a collateral objective, i.e., that it "utilized the process in a manner inconsistent with the purpose for which it was designed" (Liss v Forte, 96 AD3d 1592, 1593 [4th Dept 2012] [internal quotation marks and citation omitted]). Notably, an involuntary commitment pursuant to Mental Hygiene Law § 9.27 cannot be accomplished without a certification of mental illness and need for involuntary care and treatment by two physicians, accompanied by the submission of an application for involuntary commitment by the prison superintendent. Inasmuch as the claimant alleges the requisite certifications were in fact obtained, followed by the application for commitment by the Superintendent, who the Court of Appeals recognized as appropriate persons to execute such an application, it cannot be concluded that the process was abused.
No cause of action for invasion of privacy exists on the facts alleged because such a cause of action in New York is statutory (see Civil Rights Law §§ 50,51) and "prohibits the use of a person's 'name, portrait or picture' (Civil Rights Law § 50) or 'name, portrait, picture or voice' (Civil Rights Law § 51) for advertising or trade purposes" (Foster v Svenson, 128 AD3d 150, 155 [1st Dept 2014]). Such facts are not alleged here. Nor does the claim allege the nature of any private facts which were disclosed or to whom they were disclosed.
Lastly, with respect to the allegations of professional and medical malpractice, the claim
fails to comply with the pleading requirements of Court of Claims Act § 11 (b). This subsection requires that a claim state "the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed." Here, neither the time and place where the alleged malpractice occurred nor the nature of the malpractice are sufficiently alleged to enable defendant to investigate the claim and ascertain the existence or extent of its liability (Flemming v State of New York, 120 AD3d 848 [3d Dept 2014]).
Finally, claimant's cross motion to amend the claim to add individual defendants is denied. The jurisdiction of the Court of Claims is limited to actions against the State of New York and certain public authorities (Easley v New York State Thruway Auth., 1 NY2d 374 [1956]; Court of Claims Act § 9 [2]). As a result, the caption was properly amended to delete the individually named defendants.
Based on the foregoing, defendant's motion to dismiss the claim is granted and claimant's cross motion is denied.
July 28, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers: Notice of motion dated October 31, 2014; Affirmation of Jessica Hall dated October 31, 2014 with exhibits A-D; Notice of cross motion dated March 11, 2015; Affidavit of Peter Rolph sworn to March 9, 2015 with exhibits A-E; Memorandum of law of Peter Rolph dated March 9, 2015; Proposed amended claim, undated; Affirmation of Antony Rotondi dated March 20, 2015.