Opinion
# 2017-032-002 Claim No. 127724 Motion No. M-89033
02-02-2017
SHAUN NEVERSON v. THE STATE OF NEW YORK
Langsam Law, LLP By: Elise Hagouel Langsam, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Christina M. Calabrese, Assistant Attorney General, Of Counsel
Synopsis
Defendant's motion for summary judgment as to claim sounding in assault and wrongful confinement is granted.
Case information
| UID: | 2017-032-002 |
| Claimant(s): | SHAUN NEVERSON |
| Claimant short name: | NEVERSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127724 |
| Motion number(s): | M-89033 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Langsam Law, LLP By: Elise Hagouel Langsam, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Christina M. Calabrese, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | February 2, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The instant claim seeks money damages for injuries arising from an alleged wrongful confinement and assault while claimant was in the custody of the Department of Corrections and Community Supervision (DOCCS). Following joinder of issue and some exchange of discovery, defendant now moves for summary judgment dismissing the claim, which motion claimant opposes.
As an initial matter, to the extent that the instant claim may be read to allege violations of claimant's rights under the Federal Constitution, this Court lacks subject matter jurisdiction over such a claim, as it must be brought pursuant to 42 USC § 1983 and may not be maintained in the Court of Claims, given that the State is not a "person" for purposes of the statute (see Brown v State of New York, 89 NY2d 172, 185 [1996]; Zagarella v State of New York, 149 AD2d 503, 504 [2d Dept 1989]; Ohnmacht v State of New York, 14 Misc 3d 1231 [A], at *2 [Ct Cl 2007]). Further, to the extent that claimant alleges that the period of wrongful confinement constituted a violation of his due process rights under the New York State Constitution, such a claim must also be dismissed. While it is true that, when certain requirements are met, a violation of the State Constitution may give rise to a private cause of action in the Court of Claims (see e.g. Brown v State of New York, 89 NY2d at 195-196), where "constitutional tort allegations may be analogized into existing common-law tort[s] for which there are adequate alternate remedies," a private cause of action will not be available (Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]; see Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]). As claimant here clearly has an adequate alternative remedy in his claim for wrongful confinement, his cause of action sounding in a constitutional tort must therefore be dismissed (see Ifill v State of New York, 46 Misc 3d 1228 [A], *7 [Ct Cl 2013]).
In considering defendant's motion for summary judgment, the Court "must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations" (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [3d Dept 2011]; see Winne v Town of Duanesburg, 86 AD3d 779, 780-781 [3d Dept 2011]). As the proponent of the motion, defendant "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [citations omitted]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Robinson v Kingston Hosp., 55 AD3d 1121, 1123 [3d Dept 2008]). "In this regard, CPLR 3212 (b) provides that a summary judgment motion 'shall be supported by affidavit' of a person 'having knowledge of the facts' as well as other admissible evidence" (JMD Holding Corp. v Congress Financial Corp., 4 NY3d 373, 384 [2005], see Korn v Korn, 135 AD3d 1023, 1025 [3d Dept 2016]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; see Town of Kirkwood v Ritter, 80 AD3d 944, 945-946 [3d Dept 2011]).
In support of its motion, defendant has submitted an affirmation sworn to by Richard de Simone, Deputy Counsel in Charge of the DOCCS Office of Sentencing Review, together with records from DOCCS detailing the terms of claimant's incarceration and post-release supervision (Defendant's Exhibit C). Claimant objects to the admissibility of the affirmation and accompanying documents on the ground that de Simone does not have personal knowledge of the facts surrounding claimant's sentencing. However, "[t]he affidavit or affirmation of an attorney, even if he [or she] has no personal knowledge of the facts, may . . . serve as the vehicle for the submission of acceptable attachments which do provide evidentiary proof in admissible form, e.g., documents, transcripts" (Zuckerman v City of New York, 49 NY2d at 563 [internal quotation marks omitted]; see Chase Manhattan Automotive Fin. Corp. v Allstate Ins. Co., 272 AD2d 772, 774 [3d Dept 2000]). Therefore, because de Simone's affirmation serves as a vehicle for DOCCS records that would otherwise be admissible on this motion and of which claimant does not dispute the accuracy or veracity (see Tomeo v Beccia, 127 AD3d 1071, 1072-1073 [2d Dept 2015]; Carlton v St. Barnabas Hosp., 91 AD3d 561, 561-562 [1st Dept 2012]), the fact that the affirmation is not based upon personal knowledge does not mandate the denial of defendant's motion in this case (see Blueberry Invs. Co. v Ilana Realty, 184 AD2d 906, 908 [3d Dept 1992]).
Upon reviewing the evidence submitted by both parties, the Court notes that the facts of the instant matter are largely undisputed. On December 15, 2011, claimant was convicted, upon his plea of guilty, of criminal sale of a controlled substance in the third degree and sentenced in Supreme Court, Queens County, to a determinate term of six years in prison, to be followed by five years of post-release supervision (Claimant's Exhibit B). During the sentencing hearing, the Court (Camacho, J.) stated that the sentence he was imposing should run concurrently with time that claimant was already serving in Georgia (Claimant's Exhibit B). However, the Sentence and Commitment Order issued on that same date did not include a notation that the sentence imposed therein should run concurrently with claimant's Georgia sentence (Defendant's Exhibit C, p. 18). Therefore, after claimant completed his sentence in Georgia on or about January 6, 2016, he was returned to DOCCS's custody (Defendant's Exhibit C, p. 14). On February 3, 2016, claimant's 2011 sentence was vacated by Supreme Court, Queens County, and he was resentenced to a determinate term of six years in prison, to be followed by three years of post-release supervision, with said sentence imposed nunc pro tunc as of December 15, 2011 and deemed to run concurrently with his Georgia sentence (Defendant's Exhibit C, p. 20). On February 16, 2016, claimant was released to post-release supervision (Defendant's Exhibit C, p. 22).
Turning first to the claim of wrongful confinement, "claimant was required to show that (1) defendant intended to confine him, (2) he was conscious of the confinement, (3) he did not consent to the confinement, and (4) such confinement was not otherwise privileged" (Cass v State of New York, 134 AD3d 1207, 1208 [3d Dept 2015], lv dismissed 27 NY3d 972 [2016] [internal quotation marks and citations omitted]; accord Miller v State of New York, 124 AD3d 997, 998 [3d Dept 2015]). As the first three elements of this cause of action are not disputed, defendant's liability in this case turns upon whether or not its confinement of claimant at Rikers Island and Ulster Correctional Facility from January 6, 2016 through February 16, 2016, as well as claimant's continued status as a parolee, are privileged.
"Generally, where a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged" (Holmberg v County of Albany, 291 AD2d 610, 612 [3d Dept 2002], lv denied 98 NY2d 604 [2002]; see Jackson v State of New York, 94 AD3d 1166, 1168 [3d Dept 2012]). "In other words, 'where the illegal imprisonment is pursuant to legal process which is valid on its face, the State cannot be held liable in damages for wrongful detention . . . [unless] the court issuing the process lacked jurisdiction of the person or the subject matter'" (Collins v State of New York, 69 AD3d 46, 51 [4th Dept 2009], quoting Harty v State of New York, 29 AD2d 243, 244, [3d Dept 1968], affd 27 NY2d 698 [1970]). Furthermore, "prison officials are conclusively bound by the contents of commitment papers accompanying a prisoner'" (Matter of Murray v Goord, 1 NY3d 29, 32 [2003] [internal quotation marks and citation omitted] [emphasis in original]; accord Jackson v State of New York, 139 AD3d 1293, 1294 [3d Dept 2016]; Middleton v State of New York, 54 AD2d 450, 452 [3d Dept 1976], affd 43 NY2d 678 [1977]).
As noted above, it is undisputed that the Sentence and Commitment Order issued on December 15, 2011 did not state that claimant's sentence should run concurrently with the term that he was already serving in Georgia (Defendant's Exhibit C, p. 18). By operation of law, where a sentencing court "does not specify the manner in which a sentence imposed by it is to run, the sentence or sentences shall run consecutively" (Penal Law § 70.25 [4]; see People ex rel. Evans v New York State Dept. of Corrections, 268 AD2d 639, 640 [3d Dept 2000], lv denied 94 NY2d 762 [2000]). Therefore, despite Supreme Court's oral statement that claimant's sentence should run concurrently with his Georgia sentence, "DOCCS was required 'to comply with the plain terms of the last commitment order received'" (Jackson v State of New York, 139 AD3d at 1294, quoting Matter of Murray v Goord, 1 NY3d at 32). Further, because the December 15, 2011 Sentence and Commitment order was "a facially valid order issued by a court with proper jurisdiction direct[ing] confinement" (Holmberg v County of Albany, 291 AD2d at 612), claimant's confinement in DOCCS custody following the completion of his sentence in Georgia was privileged (see Jackson v State of New York, 94 AD3d at 1168). Likewise, claimant's current status as a parolee under DOCCS's supervision is also privileged pursuant to the facially valid Sentence and Commitment order issued on February 3, 2016 (see id.), and any challenge thereto must be pursued through appropriate proceedings before the sentencing court (see Matter of McCullaugh v DeSimone, 111 AD3d 1011, 1011 [3d Dept 2013]). Accordingly, defendant has made a prima facie showing that it is shielded from liability for wrongful confinement (see Nuernberger v State of New York, 41 NY2d 111, 116 [1976]; Nazario v State of New York, 75 AD3d 715, 718 [2010], lv denied 15 NY3d 712 [2010]; Holmberg v County of Albany, 291 AD2d at 612). Inasmuch as claimant has failed to present any evidence to demonstrate otherwise, the Court grants defendant's motion and dismisses the wrongful confinement cause of action (see Jackson v State of New York, 94 AD3d at 1168; see generally Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d at 562).
In its entirety, Penal Law § 70.25 (4) provides:
"When a person, who is subject to any undischarged term of imprisonment imposed at a previous time by a court of another jurisdiction, is sentenced to an additional term or terms of imprisonment by a court of this state, the sentence or sentences imposed by the court of this state, subject to the provisions of subdivisions one, two and three of this section, shall run either concurrently or consecutively with respect to such undischarged term in such manner as the court directs at the time of sentence. If the court of this state does not specify the manner in which a sentence imposed by it is to run, the sentence or sentences shall run consecutively."
With respect to the assault claim, as noted by defendant, claimant's sole allegation is that he was assaulted "while in prison" (Claim ¶ 2). Pursuant to Court of Claims Act § 11 (b), a claimant must "specify (1) the nature of [the claim]; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed" (Lepkowski v State of New York, 1 NY3d 201, 206 [2003] [internal quotation marks omitted]). "Absolute exactness is not required, but the claim must enable prompt investigation and be sufficiently specific to enable [a] defendant to reasonably infer the basis for its alleged liability" (Davila v State of New York, 140 AD3d 1415, 1416 [3d Dept 2016] [internal quotation marks and citations omitted]; see Morra v State of New York, 107 AD3d 1115, 1115 [3d Dept 2013]; Deep v State of New York, 56 AD3d 1260, 1261 [4th Dept 2008]).
Absent additional information with respect to the nature of the claim, the place where it arose, and the injuries sustained, the Court agrees with defendant that the cause of action sounding in assault must be dismissed for failure to plead with sufficient particularity. First, as the claim fails to specify whether the alleged assault occurred at Rikers Island, Ulster Correctional Facility, or while in transport to or from either location, the information provided is "insufficient to permit defendant to investigate its liability" (Sommer v State of New York, 131 AD3d 757, 758 [3d Dept 2015]; see Sega v State of New York, 246 AD2d 753, 755 [3d Dept 1998], lv denied 92 NY2d 805 [1998]; Wilson v State of New York, 35 Misc 3d 227, 232-233 [Ct Cl 2011]). Further, the claim does not include any "particularization of [defendant's] conduct with respect to the incident" - i.e., whether the assault was perpetrated by a Corrections Officer or another inmate - nor does it contain any description of claimant's alleged injuries, either of which would "enable defendant to reasonably infer the basis for its alleged liability" (Deep v State of New York, 56 AD3d at 1261 [internal quotation marks and citation omitted]; see Lepkowski v State of New York, 1 NY3d at 208-209; compare Sinski v State of New York, 265 AD2d 319, 319 [2d Dept 1999]). As a general matter, "'[t]he Court of Claims Act does not require [defendant] to ferret out or assemble information that [Court of Claims Act §] 11 (b) obligates the claimant to allege'" (Rivera v State of New York, 52 AD3d 1075, 1076 [3d Dept 2008], quoting Lepkowski v State of New York, 1 NY3d at 208). Accordingly, the Court finds that claimant failed to abide by the pleading requirements set forth in section 11 (b) and that such failure "'constitutes a jurisdictional defect mandating dismissal of the claim'" (Sommer v State of New York, 131 AD3d at 758, quoting Morra v State of New York, 107 AD3d at 1116; see Kolnacki v State of New York, 8 NY3d 277, 281 [2007]).
Finally, contrary to claimant's assertion, the instant motion for summary judgment is not premature inasmuch as there is no indication that further discovery might reveal material facts that are in defendant's exclusive possession and would alter the result herein (see Semzock v State of New York, 97 AD3d 1012, 1013 [3d Dept 2012]; Welsh v County of Albany, 235 AD2d 820, 822 [3d Dept 1997]).
Based upon the foregoing, it is hereby
ORDERED, that defendant's motion (M-89033) is granted and the claim (No. 127724) is dismissed.
February 2, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Verified Claim, dated March 30, 2016. 2. Verified Answer, dated April 15, 2016. 3. Affirmation in Support of Defendant's Motion for Summary Judgment, affirmed by Christina M. Calabrese, AAG, on August 9, 2016, with exhibits. 4. Affirmation in Opposition to Defendant's Motion for Summary Judgment, affirmed by Elise Hagouel Langsam, Esq., on October 24, 2016, with exhibits.