Opinion
# 2016-018-727 Claim No. 126660 Motion No. M-88477
07-20-2016
MICHAEL MATTHEWS v. STATE OF NEW YORK
MICHAEL MATTHEWS Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General
Synopsis
Claimant's application to reargue is denied. Claimant's application to file a late claim is denied as Claimant has failed to show that his proposed claim has even the appearance of merit.
Case information
| UID: | 2016-018-727 |
| Claimant(s): | MICHAEL MATTHEWS |
| Claimant short name: | MATTHEWS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126660 |
| Motion number(s): | M-88477 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | MICHAEL MATTHEWS Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 20, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant brings a motion seeking reargument or renewal of a prior Decision and Order of this Court dated February 29, 2016, which granted Defendant's pre-answer motion (M-87742) to dismiss the claim. Claimant also seeks permission to file a late claim. Defendant opposes the motion.
On February 29, 2016, the Court rendered a Decision and Order granting Defendant's pre-answer motion and dismissing the claim for lack of subject matter jurisdiction because the claim was served by regular mail instead of certified mail, return receipt requested, as required by Court of Claims Act section 11(a). Although Claimant opposed Defendant's motion and submitted a certified mail, return receipt, signed as received by the Attorney General on August 18, 2015, the return receipt did not reflect what had been mailed or received. The return receipt which Claimant asserted evidenced the Attorney General's receipt of the claim, was signed and dated a day before Claimant even signed the claim. Claimant now argues that the date he put on the claim (August 19, 2015) was a "clerical error" because he was in the Special Housing Unit and did not know the correct date.
A motion to renew or reargue a prior order is permitted by CPLR 2221. A motion for leave to reargue must be identified as such and based upon matters of fact or law allegedly overlooked or misapprehended by the Court; but it cannot include any matters of fact not offered on the prior motion, and it must be made within 30 days of the order on the prior motion (CPLR 2221 [d] [1]-[3]). A motion to renew also must be identified as such, must be based upon new facts not offered on the prior motion that would have changed the prior determination, or there must have been a change in the law that would have changed the prior determination, and there must be a reasonable explanation for the failure to present such facts on the prior motion (CPLR [e] [1]-[3]). A combination of these motions require that each component, the motion to renew and the motion to reargue, be separately identified and supported (CPLR 2221 [f]).
Here, Claimant's motion must be denied. The issue Claimant raises - his lack of awareness of the date he signed the claim because he was in the Special Housing Unit - is not a new fact. Where no new facts are presented, the motion must be considered one to reargue (Vacca v Valerino, 161 AD2d 1143 [4th Dept 1990]; Hahn v Mills, 72 AD2d 958 [4th Dept 1979]). Here, this fact was available to Claimant on the prior motion and there is no explanation why this point was not raised. For this reason, his motion is denied.
Claimant also seeks, by this motion, permission to late file a new claim in accordance with Court of Claims Act section 10 (6). The Court of Claims is a Court of limited jurisdiction, having only the authority to hear claims as provided by statute, and as a result the procedural requirements for commencing an action in this Court are jurisdictional (Court of Claims Act §§ 9, 10 and 11; see Hatzfeld v State of New York, 104 AD3d 1165 [4th Dept 2013]; Filozof v State of New York, 45 AD3d 1405 [4th Dept 2007]). Where a claimant has failed to properly and timely serve a sufficient notice of intention or a claim, the Court of Claims Act presents only one option to save the cause of action: a motion for permission to file a late claim (Court of Claims Act § 10 [6]). An application that includes a proposed claim which complies with section 11 of the Court of Claims Act may be made at any time before an action asserting a like claim against a citizen of the State would be barred under the provisions of article two of the CPLR. The late claim application is timely for all causes of action (Court of Claims Act § 10 [6]; CPLR 213 [6] and [8], and 215 [3]).
Whether the late claim application is granted depends upon the Court's discretion after considering the six factors listed in Court of Claims Act section 10 (6), and any other relevant factors. The presence or absence of any one factor is not decisive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys., Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]). Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.
Claimant asserts as an excuse for failing to properly serve the claim that was dismissed by the prior motion, that he is not an attorney and relied upon an incorrect form provided to him by the New York State Department of Corrections Law Library. He also continues to allege that the date he placed on the claim, upon which the Court relied to dismiss the earlier filed claim, was the result of his confinement in the Special Housing Unit for 23 hours per day, and the lack of knowledge and awareness of the actual date and day of the week. It is his opinion that these errors of circumstance should excuse his late filing and service of a proper claim. These circumstances, however, amount to ignorance of the law which is not an acceptable excuse (Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002] lv denied 99 NY2d 589 [2003]). Nor is the fact Claimant did not have access to legal resources a valid excuse (Matter of Thomas v State of New York, 272 AD2d 650 [3d Dept 2000]). This factor weighs against granting the application.
The factors of whether the State had notice, an opportunity to investigate the facts underlying the proposed claim, or whether the State would suffer prejudice if the application was granted are interrelated and will be considered together. These factors weigh in favor of granting Claimant's application. Claimant filed his claim on August 31, 2015. Prior to filing a claim, he filed two motions for Writs of Habeas Corpus relief sounding the same complaints which Claimant seemingly raised by his initial claim. Both motions for Writs of Habeas Corpus were opposed by the Attorney General's office on behalf of Five Points Correctional Facility. These Writ applications, brought close to ninety days after Claimant was placed in the custody of the State put the State on notice of the facts underlying this claim. The State, accordingly, had the opportunity to investigate, and in all likelihood did investigate Claimant's allegations at that time. As a result, Defendant will not be prejudiced by the granting of this application.
The next factor, whether the claim appears to be meritorious, is referred to as the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]). Generally, a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11 [Ct Cl 1977]).
The proposed claim asserts that Claimant pled guilty to five counts of Burglary 3rd and was sentenced as a second felony offender to an indeterminate three-to-six year term of imprisonment. Claimant was to serve his sentence under parole supervision and be transferred to Willard Drug Treatment Campus to undergo a 90-day drug treatment program. After successful completion, he would be released into the community under the supervision of the Division of Parole. Claimant was taken into the custody of the Department of Corrections and Supervision (DOCCS) on April 16, 2015. Claimant alleges that DOCCS then made an "erroneous determination based on fraudulent misrepresentation" about Claimant's mental health status and found him to be ineligible for the Willard Drug Treatment Program (Willard). Claimant alleges that DOCCS failed to conduct a medical or mental health examination to support its determination and offered Claimant a drug treatment program at Five Points Correctional Facility (Five Points). On April 30, 2015, Claimant consented to participate in the program at Five Points then allegedly revoked his consent on May 4, 2015. Claimant was transferred to Five Points on May 21, 2015. On May 22, 2015, he consented to treatment at Willard. Thereafter, on May 28, 2015, Claimant consented to treatment at Five Points which began on June 1, 2015. Claimant alleges that he was required to be transferred to Willard within ten days of his sentencing, and instead the State employees at Five Points deceived him into thinking he was medically restricted and ineligible for Willard thereby inducing Claimant to sign the Alternative Drug Treatment Agreement for Five Points. Claimant then twice sought Habeas Corpus relief, but both Writs were denied. Claimant alleges that DOCCS refused to produce Claimant to be heard on the Writs and continued to unlawfully confine Claimant. Claimant seems to allege three causes of action: fraud in the inducement, negligent misrepresentation, and wrongful confinement.
To set forth a cause of action for fraudulent inducement or negligent misrepresentation, a critical element for both that must be alleged is reasonable reliance on a material misrepresentation to a party's detriment (Gelmac Quality Feeds, Inc. v Ronning, 23 AD3d 1019 [4th Dept 2005]; Water St. Leasehold LLC v Deloitte & Touche LLP, 19 AD3d 183 [1st Dept 2005]; H & R Project Assoc. v City of Syracuse, 289 AD2d 967 [4th Dept 2001]). Claimant failed to assert this element. Even accepting Claimant's position that DOCCS misrepresented the fact that he was medically ineligible for Willard, Claimant has failed to allege how he was injured or damaged by completing the program at Five Points. Claimant also alleges DOCCS denied him access to the Court hearing his petition for a Writ of Habeas Corpus, however, he clearly was able to file his petition which was considered and denied; denied not because he was not present in Court, but because he was not entitled to be released from DOCCS custody.
As for a potential wrongful confinement claim, this too lacks potential merit. To assert a cause of action for unlawful confinement it is claimant's burden to alleged 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]). Here, Claimant's confinement was privileged. He was sentenced as a second felony offender to a three year minimum, six year maximum concurrent sentence on five counts of violating Penal Law section 140.20. The initial Uniform Sentence and Commitment Form did not authorize his sentence to be executed as a sentence of parole supervision at a drug treatment center in accordance with Criminal Procedure Law section 410.91. This was apparently corrected on May 4, 2015. Nonetheless, even if Claimant should not have been in the Five Points Program, he was not entitled to be released. His recourse for not being allowed into Willard would have been a referral back to the sentencing court for a hearing, not release from confinement.
Claimant's Exhibit A.
Claimant's Exhibit I.
Claimant's Exhibit F.
Claimant has failed to show that his proposed claim has even the appearance of merit. This factor weighs against Claimant's application.
The final factor is whether Claimant has any other available remedy. It does not appear that he has any other remedy.
Accordingly, based upon the foregoing, Claimant's motion for permission to file a late claim is DENIED. Claimant's motion is DENIED in its entirety.
July 20, 2016
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this matter: 1) Notice of Motion. 2) Affidavit of Michael Matthews sworn to April 29, 2016, in support, with exhibits attached thereto. 3) Affirmation of Ray A. Kyles, Esquire, Assistant Attorney General, in opposition, with exhibits attached thereto. 4) Reply Affidavit of Michael Matthews sworn to May 27, 2016, in support, with exhibits attached thereto.