Opinion
# 2016-041-085 Claim No. NONE Motion No. M-88565
10-25-2016
JOSE MONTES v. THE STATE OF NEW YORK
THE HEINRICH LAW GROUP, PC By: Jay Heinrich, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Christina Calabrese, Esq. Assistant Attorney General
Synopsis
Application to file late claim alleging wrongful confinement resulting from negligently computed maximum release date is granted as allegations show that a meritorious cause of action may exist.
Case information
| UID: | 2016-041-085 |
| Claimant(s): | JOSE MONTES |
| Claimant short name: | MONTES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended to state the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-88565 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | THE HEINRICH LAW GROUP, PC By: Jay Heinrich, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Christina Calabrese, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 25, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for permission to file a late claim pursuant to Court of Claims Act § 10 (6), or, alternatively, to have his notice of intention to file a claim be deemed a claim. Defendant opposes the motion.
Claimant has not submitted proof to demonstrate that the notice of intention to file a claim was served by personal service or by certified mail, return receipt requested, as required by Court of Claims Act 11 (a) and that aspect of the motion is denied.
The proposed claim states that claimant was wrongfully confined by defendant as a result of defendant negligently and incorrectly calculating claimant's maximum release date.
In particular, the proposed claim alleges that claimant was confined, based upon a parole violation, by defendant's Department of Corrections and Community Supervision (DOCCS) to Downstate Correctional Facility, Great Meadow Correctional Facility and, while under DOCCS custody, at Bronx State Hospital from January 15, 2015 until April 17, 2015. The proposed claim further alleges that, pursuant to the findings of the Parole Board Revocation Decision Notice (Parole Revocation Order), claimant should have been released from the confinement imposed by DOCCS on March 15, 2015.
However, it is alleged, claimant's maximum expiration date was mistakenly computed by defendant as May 15, 2015, rather than March 15, 2015, due "to the negligence of DOCCS employees in incorrectly recording on DOCCS' documents that Claimant's delinquency date was 10-20-14 [rather than 12-20-14 as set forth in the Parole Revocation Order]." Claimant remained confined beyond March 15, 2015 despite complaining to his parole officer and defendant's employees about the defendant's mistake and despite filing a written grievance.
The claim also alleges that even after the defendant's mistake was corrected on April 2, 2015, and claimant's maximum expiration date was properly recorded as March 15, 2015, defendant continued to confine claimant until April 17, 2015.
In sum, the claim alleges that claimant was wrongfully confined from March 15, 2015 until April 17, 2015.
Court of Claims Act § 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "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 civil practice law and rules."
A wrongful confinement claim accrues on "the date on which [claimant's] confinement terminated" (Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 [2005]), in this case on April 17, 2015.
In Matter of Kairis v State of New York (113 AD3d 942 [3d Dept 2014]), the court held that:
"The applicable statute of limitations for a claim of excessive confinement in the prison disciplinary context depends on whether the claim is predicated on intentional or negligent conduct (see Court of Claims Act § 10 [3], [3-b]; Ramirez v State of New York, 171 Misc 2d 677, 680-682 [1997]; cf. Vazquez v State of New York, 23 Misc 3d 1101[A], 2009 NY Slip Op 50527[U], n 2 [2009], affd 77 AD3d 1229 [2010]). Such a claim accrues 'upon a claimant's release from confinement' (Davis v State of New York, 89 AD3d 1287, 1287 [2011])"
The Kairis court thus explains that the applicable statute of limitations for negligent conduct resulting in excessive confinement is two years (Kairis, 113 AD3d at 942). Analogizing the proposed claim to a claim for negligently imposed wrongful confinement resulting from a disciplinary hearing yields a two year statute of limitation for the proposed claim. Additionally, CPLR 214 provides a three year statute of limitations for negligence claims in general.
The claimant's application to file a late claim alleging ministerial negligence in "incorrectly recording" claimant's delinquency date and wrongfully excessively confining claimant was made on April 18, 2016, more than one year, but less than two years, after accrual of his cause of action and is not barred by CPLR Article 2.
In determining the application, Court of Claims Act § 10 (6) provides that:
"[T]he court shall consider, among other 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."
In reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).
Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).
Claimant's excuse of "homelessness" for failing to timely file and serve a claim amounts to ignorance of the law and does not constitute a reasonable excuse for untimely filing and service (Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002]). Defendant correctly points out that claimant's assertion that "hospitalizations" prevented him from timely filing and serving a claim is unsupported by either a sworn statement from claimant or by hospital records.
Although claimant has failed to offer a reasonable excuse for his failure to timely file and serve the claim, "the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief" (Bay Terrace Coop. Section IV, Inc., 55 NY2d at 981).
The Court finds that the service of a notice of intention to file a claim on the Attorney General on July 17, 2015, together with the existence of grievance hearing records regarding claimant's maximum expiration date alleged to have been filed by claimant, provide defendant ample opportunity to timely investigate the claim as the "delay was minimal and the respondent was not prejudiced thereby" (Matter of Hughes v State of New York, 25 AD3d 800 [2d Dept 2006]). In this regard, it is generally recognized that prejudice is more likely to result where a proposed claim involves conditions (such as ice or snow) which are "transitory in nature" Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]). The proposed claim does not arise from a transitory condition.
Section 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have "the appearance of merit."
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]).
With respect to whether a confinement is privileged, Holmberg v County of Albany (291 AD2d 610, 612 [3d Dept 2002], lv denied 98 NY2d 604 [2002]), instructs that: "Generally, where a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged . . . and everyone connected with the matter is protected from liability for false imprisonment."
The proposed claim alleges that defendant ministerially and "incorrectly" recorded on its own documents a mistaken delinquency date and then relied upon its own documents to establish a mistaken maximum expiration date and to excessively confine claimant. While the Parole Revocation Order may have been facially valid, defendant's alleged mistaken transcription of the delinquency date could preclude reliance by defendant upon the "facially valid order" as a shield to liability. The excessive confinement was thus, arguably, not privileged.
Defendant has not offered admissible factual opposition to the allegations of the proposed claim and the allegations of the late claim application, and those allegations are deemed true for purposes of this application (Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).
The Court finds that the allegations of the proposed claim, in particular that defendant negligently calculated claimant's maximum release date because of ministerial negligence, and repeatedly failed to correct the incorrect calculation when claimant brought the mistake to defendant's attention, set forth a potentially meritorious cause of action against defendant.
Based upon a balancing of the factors set forth in section 10 (6), the claimant's application is granted. Claimant is directed to file and serve his claim in compliance with §§ 11 and 11-a of the Court of Claims Act within sixty (60) days of the filing of this Decision and Order with the Clerk of the Court of Claims.
October 25, 2016
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Motion, filed April 18, 2016; 2. Affirmation of Jay Heinrich, dated April 15, 2016 and annexed exhibits, including affidavit of Jose Montes, sworn to April 15, 2016, and the verified proposed claim; 3. Affirmation of Christina Calabrese, dated August 3, 2016.