Opinion
# 2020-015-044 Claim No. NONE Motion No. M-95370
05-06-2020
SHAWN GREEN v. STATE OF NEW YORK
Shawn Green, Pro Se No Appearance
Synopsis
Movant's application for leave to serve and file a late claim was denied as the majority of factors required for consideration did not weigh in his favor.
Case information
| UID: | 2020-015-044 |
| Claimant(s): | SHAWN GREEN |
| Claimant short name: | GREEN |
| 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-95370 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Shawn Green, Pro Se |
| Defendant's attorney: | No Appearance |
| Third-party defendant's attorney: | |
| Signature date: | May 6, 2020 |
| City: | Saratoga |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant, proceeding pro se, seeks leave to file and serve a late claim pursuant to Court of Claims Act § 10 (6).
Movant, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), seeks to allege five causes of action arising from three discrete events. The first and second proposed causes of action arise from an incident that allegedly occurred on October 15, 2019 when movant was issued a misbehavior report for violating certain prison disciplinary rules while being escorted to the Great Meadow Correctional Facility (Great Meadow) visiting room. He alleges that he was confined to his cell on keeplock status for several weeks until the misbehavior report was "eventually terminated" (proposed claim, ¶ 9). Movant seeks damages for wrongful confinement (first cause of action) as well as damages arising from cancellation of his family visit on October 15, 2019 (second cause of action).
In his third proposed cause of action movant alleges he was confined to his cell on keeplock status on December 25, 2019 without the issuance of a misbehavior report or reasonable grounds to believe such confinement was necessary.
In his fourth and fifth proposed causes of action claimant alleges that since arriving at Great Meadow on August 13, 2019, medical staff discontinued an insulin pump that had been previously prescribed and have made no reasonable effort to treat his diabetes.
The first issue for determination upon a late claim motion is whether the application is timely. Section 10 (6) of the Court of Claims Act requires that a motion to file a late claim 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." Generally, a claim accrues for purposes of Court of Claims Act when damages are reasonably ascertainable (Arbor Hill Partners v New York State Commr. of Hous. & Community Renewal, 267 AD2d 675 [3d Dept 1999]). Movant's first and third causes of action, both alleging he was wrongfully confined, arose in October and December 2019 and accrued upon his release from punitive confinement sometime thereafter (Trammell v State of New York, 172 AD3d 1847 [3d Dept 2019] [A cause of action for wrongful confinement accrues upon a movant's release from confinement]). Inasmuch as wrongful confinement is an intentional tort governed by a one-year statute of limitations (CPLR § 215 [3]), the instant motion is timely with respect to movant's proposed first and third causes of action.
The instant motion is also timely with respect to movant's proposed second, fourth, and fifth causes of action. Movant's second cause of action arises from missed visitation privileges on October 15, 2019 and the motion is timely whether this cause of action sounds in negligence or intentional tort (CPLR 214 [5]; CPLR 215 [3]). Movant's proposed fourth and fifth causes of action sounding in medical malpractice are subject to a two year six-month statute of limitations, and the motion is therefore timely with respect to these causes of action as well (CPLR 214-a).
Court of Claims Act § 10 (6) permits this Court, if the applicable statute of limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."
Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Matter of Barnes v State of New York, 164 AD3d 977 [3d Dept 2018]; Williams v State of New York, 137 AD3d 1579 [4th Dept 2016]; appeal dismissed and lv denied 28 NY3d 958 [2016]). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [3d Dept 2009]; Edens v State of New York, 259 AD2d 729, 730 [2d Dept 1999]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Mattter of Barnes v State of New York, 158 AD3d 961, 962 [3d Dept 2018]; Matter of Martinez, 62 AD3d 1225; Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
The excuse advanced by movant for failing to timely file and serve the claim is that the copy machine was either inaccessible or inoperable. Movant does not indicate the period during which the copy machine was inaccessible or inoperable, the reason the copy machine was inaccessible or whether other copy machines were available. Given these circumstances, the Court does not find the excuse offered for movant's failure to timely file a claim to be reasonable.
Movant contends in only the most conclusory manner that DOCCS had notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying it, by virtue of the various reports that were written by DOCCS' staff. However, none of the documents attached to the proposed claim, which include a Misbehavior Report dated October 15, 2019, Inmate Claim Form for the loss of certain property, I-64 forms, DOCCS' Diabetes Mellitus Primary Practice Guideline, and uncertified medical records, establish the State had notice and an opportunity to investigate the proposed claims.
To the extent movant contends that his punitive confinement resulted from a violation of one of DOCCS' own rules and regulations, no proof was submitted that DOCCS was aware of this contention during the 90-day period provided for filing a claim. Nor is there proof that the respondent had an opportunity to timely investigate any of the claims proposed to be filed late.
With respect to the required showing of merit, the claim is sufficiently established if the movant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective, and the record as a whole provides reasonable cause to believe that a valid cause of action exists (Martinez, 62 AD3d at 1227; Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
Movant failed to demonstrate the potential merit of his proposed wrongful confinement causes of action. The law is settled that conduct of correctional facility employees taken in furtherance of authorized disciplinary measures is quasi-judicial in nature and entitled to absolute immunity (Arteaga v State of New York, 72 NY2d 212 [1988]; Diaz v State of New York, 155 AD3d 1279 [3d Dept 2017], lv dismissed in part and denied in part 30 NY3d 1101 [2018]). While the State is not immune from liability for "actions of correction personnel in physically abusing inmates (see, Correction Law § 137 [5]) or in confining them without granting a hearing or other required due process safeguard (see, 7 NYCRR 251-5.1; parts 252-254)" (Arteaga, 72 NY2d at 221), the proposed wrongful confinement causes of action sought to be asserted here are premised upon violations of a regulation which is inherently discretionary. 7 NYCRR 251-1.6 authorizes confinement of an inmate for up to 72 hours "[w]here an officer has reasonable grounds to believe that an inmate should be confined to his cell or room or housing area because he represents an immediate threat to the safety, security or order of the facility or in (sic) immediate danger to other persons or to property." The discretionary conduct of correction officers in determining to confine the movant may not form the basis of a viable claim for wrongful confinement (see Diaz v State of New York, 155 AD3d 1279, 1281 [3d Dept 2017] Flemming v State of New York, 120 AD3d 848 [3d Dept 2014]; Holloway v State of New York, 285 AD2d 765 [3d Dept 2001]). While movant contends that DOCCS did not have reasonable grounds to confine him, even an improvident exercise of discretion may not divest the State of immunity (see Diaz v State of New York, supra).
To the extent movant asserts in his first proposed cause of action that he was confined to his cell on keeplock status for several weeks before the misbehavior report was "terminated" (proposed claim, ¶ 9), he failed to allege sufficient detail to permit the Court to determine whether or not a due process requirement was violated or to provide any reason to believe the outcome of the hearing would have been different without such a violation (see Moustakos v State of New York, 133 AD3d 1268 [4th Dept 2015]; Watson v State of New York, 125 AD3d 1064 [3d Dept 2015]).
Movant's second proposed cause of action alleging deprivation of visitation privileges on October 15, 2019 is likewise devoid of merit as Directive 4403 makes clear that a visit may be terminated at the Superintendent's discretion (Directive 4403 [VIII]). Moreover, nothing in the Directive governing visitation privileges gives rise to a private cause of action (McLean v City of New York, 12 NY3d 194, 200 [2009]).
Lastly, movant failed to demonstrate the potential merit of his medical malpractice causes of action (fourth and fifth causes of action in the proposed claim) as he failed to support the motion with an affidavit from a physician (Decker v State of New York, 164 AD3d 650, 653 [2d Dept 2018]; Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]). The medical proof submitted, a DOCCS' guideline and uncertified medical records, is insufficient to permit the Court to conclude that a deviation from the applicable standard of care may have occurred.
As for the final factor to be considered, the Court is unaware of the existence of alternative remedies.
Insofar as the majority of factors do not weigh in favor of granting late claim relief, movant's application must be denied.
Accordingly, the motion is denied.
May 6, 2020
Saratoga, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered: 1. Notice of Motion dated February 20, 2020; 2. Document titled "Affirmation" sworn to February 20, 2020, with attachments.