Opinion
# 2012-041-056 Claim No. 117480 Motion No. M-81397
07-25-2012
JONES v. THE STATE OF NEW YORK
Synopsis
Claim alleging that defendant unlawfully confined claimant by adding term of post-release supervision to claimant's criminal sentence is dismissed for failure to state a cause of action. Case information
+-----------------------------------------------------------------+ ¦UID: ¦2012-041-056 ¦ +---------------------------------+-------------------------------¦ ¦Claimant(s): ¦QUINCY JONES ¦ +---------------------------------+-------------------------------¦ ¦Claimant short name: ¦JONES ¦ +---------------------------------+-------------------------------¦ ¦Footnote (claimant name) : ¦ ¦ +---------------------------------+-------------------------------¦ ¦Defendant(s): ¦THE STATE OF NEW YORK ¦ +---------------------------------+-------------------------------¦ ¦Footnote (defendant name) : ¦ ¦ +---------------------------------+-------------------------------¦ ¦Third-party claimant(s): ¦ ¦ +---------------------------------+-------------------------------¦ ¦Third-party defendant(s): ¦ ¦ +---------------------------------+-------------------------------¦ ¦Claim number(s): ¦117480 ¦ +---------------------------------+-------------------------------¦ ¦Motion number(s): ¦M-81397 ¦ +---------------------------------+-------------------------------¦ ¦Cross-motion number(s): ¦ ¦ +---------------------------------+-------------------------------¦ ¦Judge: ¦FRANK P. MILANO ¦ +---------------------------------+-------------------------------¦ ¦Claimant's attorney: ¦NONE ¦ +---------------------------------+-------------------------------¦ ¦ ¦HON. ERIC T. SCHNEIDERMAN ¦ ¦ ¦ ¦ ¦ ¦New York State Attorney General¦ ¦Defendant's attorney: ¦ ¦ ¦ ¦By: Michael T. Krenrich, Esq. ¦ ¦ ¦ ¦ ¦ ¦Assistant Attorney General ¦ +---------------------------------+-------------------------------¦ ¦Third-party defendant's attorney:¦ ¦ +---------------------------------+-------------------------------¦ ¦Signature date: ¦July 25, 2012 ¦ +---------------------------------+-------------------------------¦ ¦City: ¦Albany ¦ +---------------------------------+-------------------------------¦ ¦Comments: ¦ ¦ +---------------------------------+-------------------------------¦ ¦Official citation: ¦ ¦ +---------------------------------+-------------------------------¦ ¦Appellate results: ¦ ¦ +---------------------------------+-------------------------------¦ ¦See also (multicaptioned case) ¦ ¦ +-----------------------------------------------------------------+ Decision
Defendant moves to dismiss the claim for failure to state a cause of action.
The claim primarily alleges that defendant administratively, and unlawfully, added a period of postrelease supervision to the criminal five-year determinate sentence imposed upon claimant by the sentencing court, resulting in claimant being imprisoned for violating the terms of the administratively imposed postrelease supervision.
Claimant's former attorney withdrew as claimant's attorney pursuant to this Court's Order, filed on December 16, 2011. A copy of the Order permitting withdrawal of claimant's former attorney was served on claimant by regular and certified mail, return receipt requested, and claimant has not subsequently appeared either by a new attorney or pro se as directed in the Order.
Claimant failed to appear for a conference on March 1, 2012 and has not opposed the motion which was served on claimant at the address provided by claimant's former attorney.
The claim sounds in negligence, wrongful confinement, abuse of process, injurious falsehood, false arrest, malicious prosecution and violation of state constitutional rights. Each will be considered in turn.
Claimant fails to state a cause based upon defendant's purported negligence in imposing postrelease supervision. In Donald v State of New York (17 NY3d 389 [2011]), under similar factual circumstances, the Court of Appeals rejected a cause of action against defendant based in negligence:
"[N]egligence claims are barred for another reason: the State is immune from liability for the discretionary acts of its officials (Tango v Tulevech, 61 NY2d 34, 40 [1983] ['when official action involves the exercise of discretion, the officer is not liable for the injurious consequences of that action even if resulting from negligence or malice']; Lauer v City of New York, 95 NY2d 95, 99 [2000] ['A public employee's discretionary acts . . . may not result in the municipality's liability even when the conduct is negligent']; McLean v City of New York, 12 NY3d 194, 203 [2009] ['Government action, if discretionary, may not be a basis for liability']).Where the issue is governmental immunity, an action is considered 'discretionary' if it involves 'the exercise of reasoned judgment' (Lauer, 95 NY2d at 99). DOCS's actions in recording PRS terms as part of claimants' sentences were discretionary in that sense. In each of these cases, 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.
Making judgments as to the scope of its own authority in interpreting the directions it has received from the court system is a normal and legitimate part of DOCS's function." (Donald, 17 NY3d at 395-396)
The claim fails to state a negligence-based cause of action. To establish that he was wrongfully confined, claimant must prove 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; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]).
In Ortiz v State of New York (78 AD3d 1314, 1315 [3d Dept 2010], affd Donald v State of New York, 17 NY3d 389 [2011]), the court held, under similar circumstances, that "DOCS's actions in administratively imposing postrelease supervision in the first place and also in confining individuals for a violation of administratively imposed postrelease supervision are privileged."
Because the alleged confinement was privileged, the claim fails to state a cause of action for wrongful confinement.
"To establish a prima facie claim for abuse of process, [claimant] was required to demonstrate regularly issued process, either civil or criminal, an intent to do harm without excuse or justification, and use of the process in a perverted manner to obtain a collateral objective" (Plataniotis v TWE-Advance/Newhouse Partnership, 270 AD2d 627, 630 (3d Dept 2000]).
The claim neither alleges that defendant intended to harm claimant without justification nor does it allege that defendant used "process in a perverted manner to obtain a collateral objective" (Plataniotis, 270 AD2d at 630).
The claim fails to state a cause of action for injurious falsehood:
"The tort of injurious falsehood is committed when a person utters a false and misleading statement harmful to the interests of another if (1) the statement is uttered or published maliciously and with intent to harm another or done recklessly and without regard to its consequences, and (2) a reasonably prudent person would or should anticipate that damage to another will naturally flow therefrom. Thus, a plaintiff sufficiently states a cause of action for injurious falsehood by identifying specific representations, allegedly made by the defendants, which underlie the cause of action, and by alleging special damages sustained as result of the defendants' alleged publication of an injurious falsehood" (43A NY Jur 2d, Defamation and Privacy § 5).The claim sets forth no specific malicious statement published by defendant which was intended to harm claimant or which was published recklessly and without regard to its consequences nor does it "allege special damages with sufficient particularity" (Wasserman v Maimonides Medical Center, 268 AD2d 425, 426 [2d Dept 2000]).
To succeed on a claim of malicious prosecution, "a [claimant] must establish that a criminal proceeding was commenced, that it was terminated in favor of the accused, that it lacked probable cause, and that the proceeding was brought out of actual malice" (Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]; see Krzyzak v Schaefer, 52 AD3d 979, 980 [3d Dept 2008]).
The claim fails to allege or support any of the elements of a cause of action for malicious prosecution.
The claimant's state constitutional cause of action will be considered next.
The Court of Appeals has recognized a narrowly defined cause of action for a state constitutional tort in the Court of Claims with respect to "violation of the Equal Protection and Search and Seizure Clauses of the State Constitution" (Brown v State of New York, 89 NY2d 172, 188 [1996]).
Subsequent decisional law instructs that "no such claim will lie where the claimant has an adequate remedy in an alternate forum" (Shelton v New York State Liquor Authority, 61 AD3d 1145, 1150 [3d Dept 2009]; see Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]; Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]).
Claimant could have raised his state constitutional claim in the context of an Article 78 proceeding in Supreme Court (see Bullard v State of New York, 307 AD2d 676, 678-679 [3d Dept 2003]), where incidental money damages were potentially available (see Matter of Gross v Perales, 72 NY2d 231, 237 [1988]; CPLR § 7806).
Claimant could have brought an action in Federal District Court, pursuant to 42 USC § 1983, for violation of his rights under the United States Constitution, for any unlawfully imposed confinement he suffered subsequent to the holding of the United States Court of Appeals for the Second Circuit in Earley v Murray (451 F3d 71 [2nd Cir 2006]; see Bentley v Dennison, _____ F Supp 2d ____, 2012 WL 426551 [SD NY Feb 10, 2012]).
Consequently, claimant's state constitutional tort claim does not "lie" in the Court of Claims (Shelton, 61 AD3d at 1150).
The defendant's motion to dismiss the claim is granted. The claim is dismissed.
July 25, 2012
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion, filed April 13, 2012;
2. Affirmation of Michael T. Krenrich, dated April 13, 2012, and annexed exhibit.