Opinion
# 2011-041-041 Claim No. 115456 Motion # 2011-041-041 Claim No. M-76315 CM-80291
11-28-2011
ROBINSON v. THE STATE OF NEW YORK
Synopsis
Claim alleging that defendant unlawfully confined claimant by adding term of postrelease supervision to claimant's criminal sentence is dismissed for failure to state a cause of action and because defendant's imposition of postrelease supervision was immune from liability because it was a discretionary governmental action. Case information
UID: 2011-041-041 Claimant(s): FLOYD ROBINSON Claimant short name: ROBINSON Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115456 Motion number(s): M-76315, CM-80291 Cross-motion number(s): Judge: FRANK P. MILANO Claimant's attorney: GARY E. DIVIS, ESQ. HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: By: Michael T. Krenrich, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: November 28, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant moves to dismiss the claim for failure to state a cause of action. Claimant cross-moves for partial summary judgment as to defendant's liability for unlawfully confining claimant. The defendant's motion will be considered first.
The claim alleges that defendant administratively, and unlawfully, added a period of postrelease supervision to claimant's criminal sentence of incarceration, resulting in claimant being later imprisoned for violating the terms of the administratively imposed postrelease supervision. The claim sounds in wrongful confinement.
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]).
In Ortiz v State of New York (78 AD3d 1314, 1315 [3d Dept 2010], affd Donald v State of New York, 17 NY3d 389 [2011]), the court held, under similar circumstances, that "DOCS's actions in administratively imposing postrelease supervision in the first place and also in confining individuals for a violation of administratively imposed postrelease supervision are privileged."
Because the alleged confinement was privileged, the claim fails to state a cause of action for wrongful confinement.
To the extent the claim can be read to sound in negligence, claimant attempts to distinguish his claim from those dismissed in Donald v State of New York (17 NY3d 389 [2011]) by arguing that the claims in Donald were dismissed not because of "privilege" but because of the State's immunity from suit for discretionary actions and that the State has not shown that it actually exercised any discretion prior to imposing the term of postrelease supervision.
The Court is not persuaded. The Donald opinion stated at pp. 395-396 as follows:
"Where the issue is governmental immunity, an action is considered 'discretionary' if it involves 'the exercise of reasoned judgment' (Lauer, 95 NY2d at 99). DOCS's actions in recording PRS terms as part of claimants' sentences were discretionary in that sense. In each of these cases, DOCS was presented with a prisoner sentenced to a determinate prison term, for whom PRS was mandatory under state law. DOCS made the 'reasoned judgment' that it should interpret their sentences as including PRS, though the sentences rendered by the courts did not mention it. We held in Garner that that judgment was mistaken, but it clearly was just that--a mistake in judgment--not a ministerial error, like mistranscribing an entry or confusing the files of two different prisoners. Making judgments as to the scope of its own authority in interpreting the directions it has received from the court system is a normal and legitimate part of DOCS's function."
The defendant's motion to dismiss the claim is granted. The claim is dismissed. The claimant's cross-motion for partial summary judgment is denied as moot.
November 28, 2011
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion, filed February 25, 2009;
2. Affirmation of Michael T. Krenrich, dated February 23, 2009, and annexed exhibits;
3. Claimant's Notice of Cross-Motion, filed August 18, 2011;
4. Affirmation of Gary E. Divis, dated August 16, 2011, and annexed exhibits;
5. Affirmation in Opposition and Reply of Michael T. Krenrich, dated October 4, 2011, and annexed exhibits;
6. Letter of Gary E. Divis, dated October 24, 2011.