Opinion
# 2018-038-575 Claim No. 128716 Motion No. M-92304
08-07-2018
HECTOR PORTALATIN v. STATE OF NEW YORK
LAW OFFICES OF ROSS AND HILL, PLLC By: Daniel Maziad, Esq. BARBARA D. UNDERWOOD, Attorney General of the State of New York By: Thomas R. Monjeau, Assistant Attorney General
Synopsis
Defendant's motion for summary judgment dismissing claim for false imprisonment granted in part. No liability will lie against the State for the failure of the New York City Department of Corrections to timely send claimant's jail time certificate to DOCCS, as required by Correction Law § 600-a. DOCCS neither had nor created a duty to obtain the certificate. Motion denied with respect to the period of 13 days between DOCCS recalculation and claimant's release from State custody because defendant did not offer justification for claimant's continued incarceration after his release date was recalculated.
Case information
| UID: | 2018-038-575 |
| Claimant(s): | HECTOR PORTALATIN |
| Claimant short name: | PORTALATIN |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128716 |
| Motion number(s): | M-92304 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | LAW OFFICES OF ROSS AND HILL, PLLC By: Daniel Maziad, Esq. |
| Defendant's attorney: | BARBARA D. UNDERWOOD, Attorney General of the State of New York By: Thomas R. Monjeau, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 7, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual formerly incarcerated in a State correctional facility, filed this claim in which he alleges that defendant's agents wrongfully confined him after failing to timely credit him with all of the jail time he had previously served, and that he was not released from State custody until 98 days after his conditional release date. Defendant moves for summary judgment dismissing the claim, which claimant opposes.
The motion for summary judgment was untimely, having been made more than two and one half months beyond the period of 120 days after the filing of the Note of Issue, requiring a showing of good cause (see Brill v City of New York, 2 NY3d 648, 652 [2004]). Defendant presents facts that explain the delay in making the motion, including that depositions were completed just three days before the Note of Issue was filed, that transcripts were not available to defendant until three months later, and that ongoing post-Note of Issue conferences continued in an ultimately unsuccessful effort to resolve some of the issues presented in the motion for summary judgment (see Monjeau Affirmation, ¶¶ 3-5), none of which is disputed by claimant. The Court finds that defendant has demonstrated good cause for the delay in bringing the motion and that claimant has not prejudiced by the delay, and thus, the motion will be considered.
The amended claim alleges that claimant began serving a three year sentence of incarceration on February 11, 2016, and that he was entitled to a reduction in time of 804 days for time served in the custody of the New York City Department of Corrections (NYCDOC). The amended claim alleges that due to the "negligence and carelessness" of the New York State Department of Corrections and Community Supervision (DOCCS), claimant was not credited with all of his creditable jail time and was not released until September 26, 2016, which was 98 days beyond the date he should have been released. The amended claim sounds in "negligence, violation of claimant's civil rights; [sic] violation of 42 USC 1981 and 1983 and false imprisonment" (Claim number 128716, ¶ 1).
The facts of the claim are wholly undisputed, and on defendant's motion for summary judgment, the salient issue is whether and to what degree the employees of DOCCS had a duty to reach out to the NYCDOC to acquire claimant's Jail Time Certificate from that City agency.
Defendant's submission demonstrates the following. When an individual is transferred from the custody of a locality, including New York City, he or she is accompanied to the State reception facility by certain documents that allow DOCCS to calculate and record the dates on which that person is eligible for release from State custody. When claimant was received into the custody of DOCCS on February 11, 2016, his jail time certificate, which would report the number of days he was to be credited for local incarceration on his sentence, was not among his papers. Lacking the information about his jail time credit, defendant sent a letter dated February 12, 2016 to Salathia Mixon, the individual at the NYCDOC who was responsible for sending claimant's jail time certificate to DOCCS, requesting that she send claimant's jail time certificate. In the absence of his jail time certificate, defendant calculated claimant's release date from the date of his reception at Downstate Correctional Facility (CF), without any credit for jail time served by him in New York City, yielding a conditional release (CR) date of September 4, 2018 and a maximum expiration (ME) date of February 10, 2019. DOCCS eventually received claimant's jail time certificate on September 13, 2016, more than seven months after DOCCS had requested the document from NYCDOC. The certificate stated that claimant had served 804 days in local custody. On September 15, 2016, DOCCS recalculated his release dates, resulting in a CR date of June 20, 2016 and an ME date of November 26, 2016. Claimant was released to parole from the custody of DOCCS on September 26, 2016, which was 98 days after claimant's corrected CR date on June 20, 2016.
It is well established that a movant for summary judgment must establish, by proof in admissible form, the right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (see Alvarez v Prospect Hosp.; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), or, as claimant seeks to do here, demonstrate that the undisputed facts do not warrant judgment as a matter of law.
Defendant supports its motion for summary judgment by asserting that New York Corrections Law § 600-a imposes on NYCDOC the obligation to forward the jail time certificate to DOCCS. Defendant contends that when claimant was received at Downstate CF, defendant's agents promptly and properly calculated his release dates based upon the information that they had at that time, that they intended to recalculate his release dates when they received his jail time certificate from NYCDOC, and that they did so when they received the jail time certificate in September 2016. Defendant argues that it cannot be held liable for the failure of NYCDOC to timely forward the jail time certificate. In opposition to defendant's motion, claimant argues that having written a letter to NYCDOC that went unanswered, defendant's failure to further follow up on that letter was a negligent performance of an assumed duty, and that the cause of action for wrongful confinement is viable because defendant's conduct was not privileged.
Defendant argues that although claimant was released after his CR date, he was released prior to his ME date, and thus, he has no cause of action for wrongful confinement because he had no protected liberty interest in parole (see Monjeau Affirmation, ¶ 13). While courts have so held with regard to discretionary release on parole for one serving an indeterminate sentence, conditional release on a determinate sentence - which is earned by good behavior and awarded without a hearing or exercise of discretion by the Board of Parole - is substantially different from discretionary release, and claimant argues that a CR date establishes a legitimate expectation of early release. Defendant cites no authority that expressly holds that there is not a legitimate expectation of early release on one's CR date.
The elements of the intentional tort of false imprisonment are "that defendant intended to confine [claimant], that he was conscious of the confinement, that he did not consent to the confinement and that his confinement was not otherwise privileged" (Ifill v State of New York, 149 AD3d 1287, 1288 [3d Dept 2017], citing Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]; see also Broughton v State of New York, 37 NY2d 451, 456-457 [1975], cert denied sub nom. Schanbarger v Kellogg 423 US 929 [1975]; Nazario v State of New York, 75 AD3d 715, 718 [3d Dept 2010], lv denied 15 NY3d 712 [2010]). Here, the only element of claimant's false imprisonment cause of action that is disputed is whether defendant's confinement of claimant after June 20, 2016 was privileged, and the burden to demonstrate that the confinement of claimant was privileged rests upon defendant.
Claimant does not allege that his incarceration prior to June 20, 2016 was unlawful, and it is undisputed that his initial confinement was in accordance with valid process and therefore privileged (see Ifill v State of New York, 139 AD3d at 1288).
Defendant has demonstrated that claimant's CR and ME were properly calculated based upon the information in its possession at the time that claimant was received into its custody and his release dates calculated, and that the statutory obligation to deliver the jail time certificate to DOCCS is imposed upon NYCDOC (see Correction Law § 600-a [the commissioner of NYCDOC shall keep a record of local jail time, and where the commission "has the duty of delivering a defendant to . . . (DOCCS), such person shall deliver a certified transcript of such record to" DOCCS]). Defendant relies aptly on two recent appellate decisions for the proposition that where DOCCS is not in possession of documents that it is not required to acquire, and it properly calculates an individual's release dates based upon the information that it does possess at the time of reception and then recalculates the release dates when the previously absent information is received, the continued confinement of the individual for the period of time after the proper release date is privileged (see Ifill v State of New York; Torres v State of New York, 149 AD3d 1290 [3d Dept 2017], lv denied 30 NY3d 904 [2017]). Claimant's attempt to distinguish Ifillon the ground that the information that DOCCS lacked at the time of its calculations related to claimant's sentence and not his local jail time is a distinction without a difference, because, like the jail time certificate, "DOCCS did not have an independent obligation to obtain claimant's misdemeanor sentence and commitment order" (Ifill, 149 AD3d at 1290). In other words, if DOCCS had a duty to obtain information and failed to do so, its privilege to retain a claimant beyond his corrected CR date may be lost, but here, DOCCS did not have such a duty. Thus, defendant has established prima facie that claimant's confinement from June 20, 2016 until September 13, 2016 - the date on which DOCCS received claimant's jail time certificate - is privileged.
Claimant argues that having sent a letter to NYCDOC requesting claimant's jail time certificate, defendant assumed a duty to claimant, and that in the absence of a response from NYCDOC, defendant negligently breached that duty by allowing seven months to transpire without taking any further action to acquire the certificate. This contention is unavailing, for the following reasons. First, claimant's "assumption of duty" theory is not a general tort concept of defendant having created a duty where none previously existed, but is an element of the analysis of the waiver of sovereign immunity by a governmental entity (see Florence v Goldberg, 44 NY2d 189, 195-196 [1987] [where city provided school crossing guards upon which a special class of citizens relied, it was bound to follow established procedures upon receiving notification of a crossing guard's unavailability]; cf. Johnson City Cent. School Dist. v Fidelity and Deposit Co. of Md., 272 AD2d 818, 821 [3d Dept 2000] [duty of non-negligence acknowledged via contract containing indemnity provision]). Second, in its proper context, the voluntary assumption of duty may contribute to the creation of a special relationship that gives rise to a special duty in certain circumstances:
"[A]n agency of government is not liable for the negligent performance of a governmental function unless there existed 'a special duty to the injured person, in contrast to a general duty owed to the public' . . . [this] duty to exercise reasonable care toward the plaintiff is 'born of a special relationship between the plaintiff and the governmental entity' . . . [which] can be formed . . . [when the governmental agency] assumes a duty that generates justifiable reliance by the person who benefits from the duty"
(McLean v City of New York, 12 NY3d 194, 199 [2009] [internal quotations and citations omitted]). To the extent that claimant seeks to extract this "special duty" analysis from the context of waiver of sovereign immunity and incorporate it into the creation of a general tort duty, it must be demonstrated that the claimant "justifiably relied on assurances" by the agency (Dinardo v City of New York, 13 NY3d 872, 874 [2009]) such that defendant's " 'voluntary undertaking has lulled the injured party into a false sense of security' " (id. quoting Cuffy v City of New York, 69 NY2d 255 261 [1987]) that has caused the claimant to forego conduct that would protect him or her self against the claimed injury (see id.). It has not been alleged, nor does the evidence on this motion demonstrate, that defendant told claimant that it had written to NYCDOC to obtain his jail time certificate, or that claimant relied on any such information to forego seeking to obtain the jail time information on his own. Thus, claimant has not raised an issue of fact regarding the creation of a special relationship that would have given rise to a special duty to claimant to affirmatively obtain his jail time certificate.
The preceding discussion applies equally to claimant's argument that a duty to obtain claimant's jail time certificate exists because although DOCCS did not have an obligation imposed upon it to obtain documents relating to sentence calculation, the Appellate Division has "note[d] that at oral argument, defendant's counsel candidly acknowledged that DOCCS changed its policy in 2014 to take affirmative steps to review a local commitment order after an inmate is returned to state custody from a local jail" (Torres v State of New York, 149 AD3d, at 1292, fn*). In other words, defendant having voluntarily taken an affirmative step to gather information does not, in and of itself, create a duty to claimant. Moreover, and to the extent that this change in policy specifically directed DOCCS to reach out to localities to obtain "sentence and commitment orders for local jail sentences," (id.), that change in policy may not have applied to jail time certificates because, as noted above, a statutory obligation to send jail time certificates is imposed on NYCDOC (see Correction Law § 200-a). Claimant here seeks to create a new duty that would, in essence, shift liability for the City's negligence to the State.
Furthermore, in the absence of a legal duty upon defendant to obtain the jail time certificate from NYCDOC, defendant cannot be held liable under a theory of ministerial negligence for its failure to release claimant on his corrected CR date (see Ramirez v State of New York, 171 Misc 2d 677 [Ct Cl 1997]).
In sum, because DOCCS had no duty to reach out to NYCDOC to obtain claimant's jail time certificate, and because neither the letter of February 5, 2016 nor a change in policy with respect to local commitment orders or sentencing minutes created such a duty, defendant is entitled to summary judgment with respect to claimant's allegations of false imprisonment and negligent confinement from June 20, 2016 through September 13, 2016. However, the claim alleges, and defendant acknowledges, that claimant was not released from custody by DOCCS until September 26, 2016, and defendant's motion for summary judgment does not demonstrate why claimant remained in the custody of DOCCS after it received claimant's jail time certificate on September 13, 2016, a period of 13 days. In light of defendant's own determination that claimant should have been released on June 20, 2016, and that the information necessary to make that determination was received on September 13, 2016, defendant must provide legal justification for the further delay in releasing claimant (see Minieri v State of New York, 204 AD2d 982 [4th Dept 1994]; Gittens v State of New York, 132 Misc 2d 399, 406 [Ct Cl, 1986]; Fanelli-Cressman v State of New York, UID No. 2015-018-644 [Ct Cl, Fitzpatrick, J., Oct. 6, 2015]; Ramirez v State of New York, supra). Here, defendant offered no proof or argument that claimant's continued confinement for an additional 13 days was justified, and thus, it did not meet its burden on the motion for summary judgment dismissing the claim for false imprisonment or negligent confinement with respect to that period of time. Nor does defendant's motion for summary judgment address the viability of claimant's civil rights claims.
Accordingly, it is
ORDERED, that motion number M-92304 is GRANTED IN PART, and that part of claim number 128716 that alleges false imprisonment and negligent confinement from June 20, 2016 through September 13, 2016 is DISMISSED, and it is further
ORDERED, that motion number M-92304 is DENIED in all other respects.
August 7, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Amended Claim number 128716, filed December 9, 2016; (2) Verified Answer to Amended Claim, filed January 9, 2017; (3) Notice of Motion, dated May 21, 2018; (4) Affirmation of Thomas R. Monjeau, AAG, in Support of Motion, dated May 21, 2018, with Exhibits A-B; (5) Affirmation of Daniel Maziad, Esq., in Opposition, dated June 7, 2018.