Opinion
# 2021-015-014 Claim No. 134471 Motion No. M-96065
01-29-2021
JULIO PEREZ v. THE STATE OF NEW YORK
No Appearance Honorable Letitia James, Attorney General By: Charles Lim, Esq., Assistant Attorney General
Synopsis
Defendant waived its defense that the claim was untimely but dismissal was nonetheless required on the ground the claim failed to state a cause of action for wrongful confinement.
Case information
| UID: | 2021-015-014 |
| Claimant(s): | JULIO PEREZ |
| Claimant short name: | PEREZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the only properly named defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 134471 |
| Motion number(s): | M-96065 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | No Appearance |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Charles Lim, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 29, 2021 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the claim on the grounds it was not timely filed and served and fails to state a cause of action.
Claimant, a pro se inmate, was charged with unauthorized drug use in violation of prison rules. Following a tier III hearing, claimant was found guilty of the charge on September 10, 2019 and a penalty of 54 days keeplock confinement was imposed, together with the loss of certain privileges for 90 days. Claimant filed an administrative appeal which resulted in a reversal of the guilty determination on January 9, 2020. Claimant alleges that reversal of the guilty determination "prov[es] my illegal confinement was not lawful" (Claim, ¶ 2, last sentence).
According to defense counsel, claimant served a notice of intention to file a claim by ordinary mail, which was received in the Office of the Attorney General on February 4, 2020. Dismissal of the claim is sought on the basis that the notice of intention was not served personally or by certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (i), and therefore did not extend the time to serve and file a claim. As a result, defendant contends that the claim served and filed on February 14, 2020 was untimely.
Alternatively, defendant contends that the claim fails to state a cause of action because claimant failed to allege a violation of a required due process safeguard with regard to the manner in which the hearing was conducted.
Court of Claims Act § 10 (3-b) requires that an intentional tort claim, such as one for wrongful confinement, be filed and served within 90 days following accrual of the claim unless a notice of intention to file a claim is served within that same time period, "in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim." Like a claim, a notice of intention is required to be served personally or by certified mail, return receipt requested (Court of Claims Act § 11 [a] [i]). The State's waiver of immunity under Section 8 of the Court of Claims Act is conditioned upon claimant's compliance with the specific conditions to suit set forth in article II of the Court of Claims Act, which include the time limitations set forth in Court of Claims Act §§ 11 and 10 (Lyles v State of New York, 3 NY3d 396, 400 [2004]; Alston v State of New York, 97 NY2d 159 [2001]). As a result, "[a] failure to comply with the time provisions of Court of Claims Act § 10 divests the Court of Claims of subject matter jurisdiction" (Steele v State of New York, 145 AD3d 1363, 1364 [3d Dept 2016]; see also Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; Miranda v State of New York, 113 AD3d 943 [3d Dept 2014]; Encarnacion v State of New York, 112 AD3d 1003 [3d Dept 2013]).
A claim for wrongful confinement accrues upon a claimant's release from confinement because it is on that date that damages are reasonably ascertainable (Trammell v State of New York, 172 AD3d 1847 [3d Dept 2019]; Campos v State of New York, 139 AD3d 1276 [3d Dept 2016]; Johnson v State of New York, 95 AD3d 1455, 1456 [3d Dept 2012]; Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]; Burks v State of New York, 119 AD3d 1302 [3d Dept 2014]). Here, the claimant was released from punitive confinement on November 3, 2019. The notice of intention was served by ordinary mail and was not received in the Office of the Attorney General until February 4, 2020, more than 90 days after the claim accrued. Inasmuch as the notice of intention was improperly and belatedly served, it did not extend the time for service and filing of the claim. Although the claim filed and served on February 14, 2020 was therefore untimely, by raising as an affirmative defense the time limitation contained in Court of Claims Act § 10 (3), without raising the time limitation applicable to intentional torts contained in Court of Claims Act § 10 (3-b), the defendant waived its objection to the timeliness of the claim under Court of Claims Act § 10 (3-b) (see Court of Claims Act § 11 [c]; Sinacore v State of New York, 176 Misc 2d 1 [Ct Cl, 1998]; Esposito v State of New York, Ct Cl, Dec. 27, 2011,Collins, J., claim No. 116864, UID No. 2011-015-283).
Defendant next contends that the claim fails to state a cause of action because claimant failed to allege a violation of a due process safeguard in the manner in which the hearing was conducted. The law is settled that conduct of correctional facility employees taken in furtherance of authorized disciplinary measures is quasi-judicial in nature and entitled to absolute immunity (Arteaga v State of New York, 72 NY2d 212 [1988]; Kairis v State of New York, 113 AD3d 942 [3d Dept 2014]; Loret v State of New York, 106 AD3d 1159 [3d Dept 2013], lv denied 22 NY3d 852 [2013]; Shannon v State of New York, 111 AD3d 1077 [3d Dept 2013]). The Arteaga Court made clear, however, that the State is not immune from liability for "actions of correction personnel in physically abusing inmates (see, Correction Law § 137 [5]) or in confining them without granting a hearing or other required due process safeguard (see 7 NYCRR 251-5.1; parts 252-254)" (Arteaga, 72 NY2d at 221). Consequently, "actions of correctional facility employees with respect to inmate discipline matters are quasi-judicial in nature and, unless the employees exceed the scope of their authority or violate the governing statutes and regulations, defendant has absolute immunity for those actions" (Ramirez v State of New York, 175 AD3d 1635, 1636-1637 [3d Dept 2019], lv denied 35 NY3d 902 [2020], quoting Miller v State of New York, 156 AD3d 1067, 1067 [2017] [internal quotation marks and citation omitted]; see also Loret v State of New York, 106 AD3d at 1159; Holloway v. State of New York, 285 AD2d 765, 765 [3d Dept 2001]). Here, claimant failed to allege a violation of a due process safeguard and the State therefore retains its immunity from liability. An administrative reversal, standing alone, is insufficient to divest the State of its immunity for the quasi-judicial conduct of its hearing officer. Moreover, even if a violation of a due process safeguard was alleged, claimant is not relieved from establishing the material elements of a tort claim (see Lauer v City of New York, 95 NY2d 95, 99-101 [2000]; Tango v Tulevech, 61 NY2d 34, 40 [1983]; Moustakos v State of New York, 133 AD3d 1268 [4th Dept 2015]). The due process violation "merely remove[s] the cloak of absolute immunity and make[s] the State potentially liable, if liability would be imposed under common law tort principles" (Moustakos, 133 AD3d at 1269, quoting Kilpatrick v State of New York, Ct Cl, Dec. 2001, Patti, J., claim No. 100462, UID No. 2001-013-031).
To prevail on a common law cause of action for wrongful confinement, a species of false imprisonment, it must be established that "(1) the defendant intended to confine [claimant], (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]; see also Moustakos, 133 AD3d at 1269 ; Gittens v State of New York, 132 Misc.2d 399, 406 [Ct Cl 1986]). While there is no dispute as to the first three elements, claimant failed to allege the fourth element, that the confinement was not privileged, because there is no allegation or evidence that the outcome of the hearing would have been different had no procedural violations occurred (see Moustakas, 133 AD3d at 1270; see also Watson v State of New York, 125 AD3d 1064 [3d Dept 2015]). Indeed, defendant established in support of its motion that claimant pled guilty to the charge. Accordingly, claimant failed to state a cause of action for wrongful confinement. Based on the foregoing, defendant's motion is granted and the claim is dismissed.
January 29, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of motion dated October 15, 2020;
2. Affirmation in support dated October 15, 2020, with Exhibits A-E.