Opinion
# 2018-053-571 Claim No. NONE Motion No. M-92752
12-19-2018
RONNIE POWELL v. THE STATE OF NEW YORK
THE LAW OFFICES OF MATTHEW ALBERT, ESQ. BY: Matthew Albert, Esq. HON. BARBARA D. UNDERWOOD New York State Attorney General BY: Michael T. Feeley, Esq. Assistant Attorney General
Synopsis
Movant's motion for permission to late file a claim is granted as to cause of action for wrongful confinement.
Case information
| UID: | 2018-053-571 |
| Claimant(s): | RONNIE POWELL |
| Claimant short name: | POWELL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the only proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-92752 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | THE LAW OFFICES OF MATTHEW ALBERT, ESQ. BY: Matthew Albert, Esq. |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD New York State Attorney General BY: Michael T. Feeley, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 19, 2018 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant Ronnie Powell brings this motion seeking permission to late file a claim for wrongful confinement. Court of Claims Act §10 (6) provides the procedure for seeking leave to file and serve a late claim. Defendant opposes the motion.
A motion for permission to file and serve a late claim must be brought "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" (Court of Claims Act § 10 [6]). A negligence action against a private citizen would have to be commenced within three years of accrual of the claim (CPLR 214), while an action based on an intentional tort must be brought within one year of accrual (CPLR 215). Accordingly, a motion for permission to late file a negligence claim must be brought within three years of accrual of the negligence and a motion to late file a claim based on an intentional tort must be brought within one year of accrual of the intentional tort. Movant filed his motion to late file a claim on August 24, 2018. In the proposed claim attached to his motion, movant alleges that his claim accrued on March 29, 2018, when movant was released from Gowanda Correctional Facility (Gowanda). Assuming that this date is correct, then this motion would be timely whether based on negligence or on an intentional tort.
The Court of Claims is vested with broad discretion to grant or deny permission to late file a claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In determining whether to grant permission to late file a claim, the Court must 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 [movant] has any other available remedy" (Court of Claims Act § 10 [6]). The enumerated statutory factors are not exhaustive and the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]). Defendant argues that movant failed to adequately address each of these factors.
The first factor to be considered by the Court is whether the delay in filing the claim was excusable. Movant, by his counsel, asserts that the delay was excusable as movant did not seek counsel until late June of 2018 and because counsel sent a FOIL request seeking documents relating to movant's incarceration. Movant fails to explain, however, why a notice of intention to file a claim was not served. The service of a notice of intention would have extended the time to file and serve a claim and would have given counsel the time he believed was needed to perform his "due diligence." Lack of knowledge regarding one's rights or the legal requirements of a potential claim are not acceptable excuses for failing to file a timely claim (Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv denied 99 NY2d 589 [2003]). This factor does not weigh in movant's favor (Ramazzotti v State of New York, UID No. 2014-048-140 [Ct Cl, Bruening, J., June 4, 2014]), but the lack of an excusable delay is only one of the factors to be considered.
The next three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [Ct Cl, 1998]). Movant's counsel alleges that defendant had notice of the essential facts and an opportunity to investigate because of comments movant allegedly made at his parole hearing. However, these allegations are conclusory in nature and based solely on counsel's affidavit. Counsel attempts to rectify this omission by attaching an affidavit of movant to his reply affidavit. This affidavit should have been supplied with the original motion when defendant would have had the opportunity to address it. Defendant does not contend that it was prejudiced by the delay in filing a claim. Considering the nature of the claim and the brief delay in filing the claim, the Court cannot conclude that the defendant would be unable to investigate the claim or would be prejudiced by allowing the late filing of a claim (see generally, DeJesus v County of Albany, 267 AD2d 649 [3d Dept 1999]). Accordingly, these factors weigh in favor of movant's motion.
The most important factor to consider is merit as it would be futile to permit a claim to be filed which was subject to dismissal (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). It is Movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and that there is a reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc2d 1 [Ct Cl, 1977]). While this standard places a heavier burden upon a party who has filed late, this standard does not require movant to establish the merit of his claim or to overcome all legal objections before the Court will permit the filing of a late claim (Id. at 11-12.).
The main cause of action asserted in the proposed claim is wrongful confinement. In order to set forth a cause of action for wrongful confinement, movant must show (1) that defendant intentionally confined him, (2) that he was conscious of the confinement, (3) that he did not consent to the confinement, and (4) that 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]). There is no dispute as to the first three elements of a wrongful confinement cause of action. The sole issue is whether movant's confinement was privileged.
Defendant argues that this Court, as a Court of limited jurisdiction, does not have jurisdiction to review the sentencing computations made by the Department of Corrections and Community Supervision (DOCCS). A claim which would require review of an administrative agency's determination is properly brought in State Supreme Court pursuant to CPLR Article 78 (see generally, Matter of Delrosario v Stanford, 140 AD3d 1515 [3d Dept 2016]; Madura v State of New York, 12 AD3d 759 [3d Dept 2004]). Moreover, decisions regarding parole are strictly sovereign and quasi-judicial and, accordingly, the State is absolutely immune from tort liability in making such determinations (Semkus v State of New York, 272 AD2d 74 [1st Dept 2000]).
Movant, however, was sentenced to a prison term as a result of his conviction. "[W]here 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 [3d Dept 2002]). DOCCS, however, was bound by the terms and conditions of the sentence and commitment order which directed that movant be incarcerated for a period of time of 35 to 42 months. The proposed claim alleges DOCCS continued to confine movant after that period had ended. As there was apparently no order from the court directing DOCCS to continue to hold movant, its action was arguably not privileged (Miller State of New York, 124 AD3d 997 [3d Dept 2015]; Moulton v State of New York, 114 AD3d 115 [3d Dept 2013]). Accordingly, the Court concludes that the proposed claim has, at least the appearance of merit with respect to a cause of action for wrongful confinement.
The Court also finds that the remainder of the proposed claim does not assert a viable cause of action. In paragraph 9 of the proposed claim, movant references an alleged attack by another inmate. It has been held that the State must provide inmates with reasonable protection against foreseeable risks of attack by other inmates (Blake v State of New York, 259 AD2d 878 [3d Dept 1999]). "Because the State is not an insurer of an inmate's safety, it will be liable in negligence for an assault by another inmate only upon a showing that it failed to exercise adequate care to prevent that which was reasonably foreseeable" (Melvin v State of New York, 101 AD3d 1654 [4th Dept 2012]). Movant must allege and ultimately prove that the State knew or should have known that movant was at risk of being assaulted and failed to protect him, that the State knew or should have known that the assailant was prone to assaulting others and failed to take any precautionary measures, or that the State had notice and opportunity to intervene but failed to act (Sanchez v State of New York, 99 NY2d 247 [2002]). Nothing in the proposed claim alleges how the State could be liable for movant's personal injuries and is totally devoid of facts regarding any alleged assault. Accordingly, paragraph 9 of the proposed claim lacks the appearance of merit (Carrasco v State of New York, UID No. 2018-053-518 [Ct Cl, Sampson, J., April 9, 2018]).
Insofar as the proposed claim appears to allege a cause of action for punitive damages, it must fail. Punitive damages are unavailable against the State (Sharapata v Town of Islip, 56 NY2d 332 [1982]). Similarly, a cause of action for intentional infliction of emotional distress is prohibited as against public policy (Afifi v City of New York, 104 AD3d 712 [2d Dept 2013]), and a cause of action for negligent infliction of emotional distress only arises out of very limited circumstances which are not set forth in the proposed claim (see Lauer v City of New York, 95 NY2d 95 [2000]).
Finally, insofar as the proposed claim can be read as asserting a Constitutional tort cause of action, it fails to allege a viable cause of action. The Court of Claims lacks jurisdiction over claims alleging a violation of the federal Constitution (Carver v State of New York, 79 AD3d 1393 [3d Dept 2010], lv denied, 17 NY3d 707 [2011]), and a State Constitutional claim will lie only where there is no alternate remedy (Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]). Here, movant could file a petition under CPLR Article 78 in State Supreme Court.
The final factor to consider is whether movant has another remedy available. Movant could bring an Article 78 Petition in State Supreme Court or possibly an action in Federal Court pursuant to 42 USC § 1983. As such, this factor also does not weigh in movant's favor. Based on the foregoing and having considered the statutory factors listed in Court of Claims Act 10 § 10 (6), movant's motion no. M-92752 for permission to late file a claim limited to a cause of action for wrongful confinement is granted. Movant is directed to file and serve a limited claim in compliance with the Court of Claims Act within forty-five (45) days of the filing of this decision and order.
December 19, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read considered by the Court: 1. Notice of motion and supporting affidavit of Matthew Albert, Esq. sworn to August 24, 2018, with annexed Exhibits A-D; 2. Opposing affidavit of Assistant Attorney General Michael T. Feeley sworn to October 5, 2018; 3. Reply affidavit of Matthew Albert, Esq. sworn to October 9, 2018; and 4. Supporting affidavit of Ronnie Powell sworn to October 9, 2018.