Opinion
# 2017-041-035 Claim No. NONE Motion No. M-89903
05-23-2017
WILLIAM M. NICHOLS v. THE STATE OF NEW YORK
WILLIAM M. NICHOLS Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Thomas R. Monjeau, Esq. Assistant Attorney General
Synopsis
Application to file late claim is granted where allegations provide cause to believe a valid cause of action for wrongful confinement may exist.
Case information
| UID: | 2017-041-035 |
| Claimant(s): | WILLIAM M. NICHOLS |
| Claimant short name: | NICHOLS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-89903 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | WILLIAM M. NICHOLS Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Thomas R. Monjeau, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 23, 2017 |
| 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). Defendant opposes the motion.
The proposed claim alleges, among other causes of action, that the inmate/claimant was wrongfully confined to keeplock at Clinton Correctional Facility from February 11, 2016 until March 17, 2016 as result of a determination issued after an inmate disciplinary hearing. The disciplinary hearing was allegedly brought against claimant based primarily upon the existence of an unauthorized "program" on claimant's computer and the alleged alteration of certain forms on claimant's computer.
The hearing determination was administratively reversed after claimant had served his penalty of confinement and after claimant had commenced an Article 78 proceeding challenging the hearing determination. The record does not disclose why the disciplinary hearing determination was reversed by defendant. In both his claim, and in his late claim application, claimant argues that the disciplinary hearing determination was not supported by substantial evidence and was conducted in violation of "[t]wo of the most essential requirements concerning reports of inmate misbehavior . . . 7 NYCRR 251-3.1(a) and 7 NYCRR 251-3.1(c)(1)."
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."
Defendant does not challenge the timeliness of the claimant's application.
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 & Firemen's Retirement Sys, 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]).
Defendant contests the reasonableness of claimant's lateness excuse, argues that defendant would be substantially prejudiced in defending the claim and asserts that the proposed claim lacks merit.
Claimant's excuse for allegedly failing to timely file and serve a claim amounts to ignorance of the law and neither ignorance of the law nor "conclusory allegations that one is incarcerated and without access to legal references" constitute a reasonable excuse for untimely filing and service (Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002]).
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 there was a limited period of time which elapsed between the accrual date (March 17, 2016), the service of the Article 78 proceeding (May 5, 2016) and service of the application to file a late claim on January 29, 2017. This, together with the proposed claim's specificity and the existence of easily identifiable disciplinary hearing records, provide defendant ample opportunity to timely investigate the claim as the "delay was minimal and the respondent was not prejudiced thereby" (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.
With respect to the merit of the proposed claim, section 10 (6) requires that it 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]).
Defendant argues that the claimant's confinement was privileged and immune from liability.
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."
In the context of confinement pursuant to a prison disciplinary proceeding, such confinement is "privileged to the extent that it was under color of law or regulation, specifically in accordance with [inmate misbehavior] regulations" (Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]).
Similarly, where employees of the Department of Correctional and Community Services, in commencing and conducting formal inmate disciplinary proceedings, "act under the authority of and in full compliance with the governing statutes and regulations . . . their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity" (Arteaga v State of New York, 72 NY2d 212, 214 [1988]; Varela v State of New York, 283 AD2d 841 [3d Dept 2001]).
This immunity attaches even if the determination is later reversed administratively or as the result of a successful article 78 proceeding (see Arteaga, 72 NY2d at 215).
If, however, prison officials fail to comply with one of the rules or regulations governing such disciplinary hearings, absolute immunity is lost and liability may be imposed if it is proven that the regulatory violation caused actual injury to the inmate (Rivera v State of New York, UID No. 2006-028-008, Claim No. 102781 [Ct Cl, Feb. 8, 2006 Sise, P.J.], citing Vasquez v State of New York, 10 AD3d 825 [3d Dept 2004] and Henderson v Coughlin, 163 Misc 2d 20 [Ct Cl 1994]).
Importantly, not all disciplinary hearing procedural rules and regulations, if violated, form a basis to abrogate the immunity afforded to employees of the Department of Corrections and Community Supervision in commencing and conducting formal inmate disciplinary proceedings. The rule or regulation must implicate minimal due process protections:
"Notably, there is no right to counsel or to confrontation at prison disciplinary hearings. . . Nevertheless, an inmate is entitled to advance written notice of the charges against him; a hearing affording him a reasonable opportunity to call witnesses and present documentary evidence; a fair and impartial hearing officer; and a written statement of the disposition, including the evidence relied upon and the reasons for the disciplinary actions taken" (Sira v Morton, 380 F3d 57, 69 [2d Cir 2004]).
Claimant alleges that defendant violated 7 NYCRR 251-3.1 (a), which requires that an incident of alleged inmate misbehavior must reported in "writing, as soon as practicable" and that the misbehavior he was charged with (improper forms on his computer) had allegedly occurred, with defendant's knowledge, for "over 1 year."
The Court finds that the first disciplinary hearing regulation allegedly violated by defendant, 7 NYCRR 251-3.1 (a), does not implicate minimal due process protections and cannot form a basis to abrogate the quasi-judicial hearing immunity possessed by defendant.
The Court, however, agrees with claimant that a violation of 7 NYCRR 251-3.1 (c) (1), which requires that a misbehavior report include "a written specification of the particulars of the alleged incident of misbehavior involved," may implicate the minimal due process requirement that "an inmate is entitled to advance written notice of the charges against him" ((Sira, 380 F3d 57 at 69).
The claimant offers unrebutted sworn proof tending to show that neither claimant nor the disciplinary hearing officer were aware of the particulars of the alleged misbehavior: "Prior to testifying Claimant requested on the record to review the alleged 'To' forms because he did not know what they were. After reviewing them Claimant asked what the alleged [unauthorized] 'program' was. [Hearing Officer] Clancy stated that he did not know what the [unauthorized] 'program' was."
Accordingly, the Court finds that the proposed claim, alleging that defendant failed to comply with its own regulations and that claimant was wrongfully confined as a direct result of defendant's failure, is not patently without merit and, accepting the claim's allegations as true, provides cause to believe that a cause of action for wrongful confinement may exist.
Based upon a balancing of the factors set forth in section 10 (6), the Court grants the claimant's application with respect to the proposed claim's cause of action for wrongful confinement and denies the application with respect to the remaining proposed causes of action.
Claimant is directed to file and serve his claim in compliance with this Decision and Order and 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.
May 23, 2017
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion For Leave to Serve and File Late Notice of Claim, filed February 9, 2017; 2. Affidavit of William M. Nichols, sworn to January 29, 2017, and attached exhibits; 3. Affirmation of Thomas R. Monjeau, dated March 1, 2017; 4. Reply Affidavit of William M. Nichols, sworn to March 7, 2017.