Opinion
# 2016-041-061 Claim No. NONE Motion No. M-88699
08-10-2016
ANTHONY RUCANO v. THE STATE OF NEW YORK
ANTHONY RUCANO Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael T. Krenrich, Esq. Assistant Attorney General
Synopsis
Application to file late claim is granted in part and denied in part as allegations provide cause to believe a valid cause of action for wrongful confinement may exist.
Case information
| UID: | 2016-041-061 |
| Claimant(s): | ANTHONY RUCANO |
| Claimant short name: | RUCANO |
| 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-88699 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | ANTHONY RUCANO Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael T. Krenrich, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 10, 2016 |
| 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 that claimant, then an inmate at Clinton Correctional Facility (Clinton), was wrongfully confined to the Special Housing Unit (SHU) and suffered loss of privileges and other damages as a result of a January 29, 2016 inmate misbehavior report and ensuing disciplinary hearing and determination. The misbehavior report charged the claimant with possession of contraband, harassment, false statements, forgery and a facility correspondence violation. The charges arose from a letter claimant sent to a Clinton employee regarding an issue claimant was experiencing at Clinton with respect to possession of certain erotic magazines. The letter allegedly had a "forged" letterhead stating that it was an "interdepartmental communication" and implied that it related to claimant's position as a law library clerk and/or as an Inmate Liaison Committee (ILC) representative. The letter was allegedly written, without permission, on a law library computer for claimant's personal interests rather than for law library or ILC purposes.
Claimant was found guilty of the disciplinary charges after a hearing and, on February 11, 2016, was sentenced to ninety (90) in the SHU, among other penalties. The hearing determination was administratively modified on March 15, 2016 to a forty-five (45) day term, and, on April 6, 2016, the disciplinary determination was reversed and the charges dismissed.
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]).
Claimant argues that he has satisfied each of the statutory factors and is not contradicted by defendant's opposition papers, except that defendant contests the reasonableness of claimant's lateness excuse and the merit of the proposed claim.
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).
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."
Defendant has not offered an affidavit, nor offered any other proof, disputing the factual allegations of the proposed claim and the allegations are deemed true for purposes of this application (Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).
It is further noted that the record is silent, aside from claimant's allegations, as to why the disciplinary determination was reversed and the disciplinary charges dismissed, and the Court is constrained, on this application, to accept the proposed claim's allegations as true.
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 Corrections and Community Supervision, 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]). Claimant alleges that defendant violated 7 NYCRR 250.2, which delineates "[g]eneral policies on discipline of inmates," in commencing and conducting the hearing, imposing the penalty and in confining claimant in the SHU following the hearing determination. Claimant specifically alleges institutional retaliation as the basis of the issuance of the misbehavior report and bias of the hearing officer in conducting the disciplinary hearing.
With respect to the misbehavior report, 7 NYCRR 251-3.1 (b), states as follows:
"The misbehavior report shall be made by the employee who has observed the incident or who has ascertained the facts of the incident. Where more than one employee has personal knowledge of the facts, each employee shall make a separate report or, where appropriate, each employee shall endorse his/her name on a report made by one of the employees."
Claimant alleges that the misbehavior report was made in retaliation against claimant for claimant's ILC activities by an employee who was "directed" to do so by the "Captains Office."
Claimant also asserts that the hearing officer was biased. 7 NYCRR 253.1 (b) mandates that:
"The disciplinary hearing officer shall be responsible for conducting disciplinary hearings in an impartial manner."
The proposed claim alleges in detail that a particular Clinton officer was assigned as hearing officer at the disciplinary hearing for the purpose of enforcing institutional "retaliation" against claimant and further alleges that the hearing officer repeatedly acted with bias against claimant.
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.
With respect to the proposed claim's cause of action for malicious prosecution, the Court agrees with the holding in Treacy v State of New York, 131 Misc 2d 849, 851-852 [Ct Cl 1986], affd Arteaga v State of New York, 125 AD2d 916 [3d Dept 1986], appeal granted Treacy v State of New York, 69 NY2d 609 [1987], affd Arteaga v State of New York, 72 NY2d 212 [1988]):
"Turning to the claim for malicious prosecution, we do not believe that a Superintendent's Hearing is the type of proceeding which will form the basis for a subsequent malicious prosecution claim. Although claimant correctly points out that certain administrative proceedings are sufficiently akin to judicial proceedings so as to permit actions for malicious prosecution (see Groat v. Town Board of Glenville, 73 A.D.2d 426, 426 N.Y.S.2d 339) it must be noted that this rule applies to administrative proceedings which provide for a "hearing and trial of the issues on evidence and testimony under oath, with the right of cross examination" (supra, at p 429). In contrast, a Superintendent's Hearing is not a full-scale adversarial hearing. The only requirements of said proceeding are that the inmate be (1) apprised of the charges against him in writing at least 24 hours prior to any hearing, (2) accorded an opportunity to respond to said charges, and (3) given a written statement from the factfinders of the evidence relied on and the reasons for the action taken. The right to confrontation and assistance of counsel are not required (see 7 NYCRR 254; Gunn v. Ward, 71 A.D.2d 856, 419 N.Y.S.2d 182, supra), and an inmate can be denied the privilege of calling witnesses where their presence would "jeopardize institutional safety or correctional goals" (7 NYCRR 254.5[b]; Matter of Cortez v. Coughlin, 67 N.Y.2d 907, 501 N.Y.S.2d 809, 492 N.E.2d 1225 [1986] ). We must conclude that a malicious prosecution action will not lie by reason of the ultimate dismissal of charges considered at a Superintendent's Hearing conducted in a State correctional facility. Rather, the Commissioner's right to carry out constitutionally permissible discipline and his power to establish rules governing proceedings within correctional institutions (Correction Law, § 112) mandates that no such action be permitted (see Gunn v. Ward, 71 A.D.2d 856, 419 N.Y.S.2d 182, supra). Any constitutional due process violations which may arise through the application of prison rules can be addressed either in a federal civil rights action or through a declaratory judgment or article 78 proceeding in Supreme Court."
The proposed claim also asserts causes of action for alleged violations of the New York State Constitution's protections of due process and free speech and for the defendant's "negligent investigation of the misbehavior report."
With respect to the claimant's state constitutional allegations, the New York Court of Appeals has recognized a narrowly defined cause of action for a state constitutional tort in the Court of Claims with respect to "violation of the Equal Protection and Search and Seizure Clauses of the State Constitution" (Brown v State of New York, 89 NY2d 172, 188 [1996]).
Subsequent decisional law instructs that "no such claim will lie where the claimant has an adequate remedy in an alternate forum" (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1150 [3d Dept 2009]; see Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]; Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]).
Claimant could have brought an action in Federal District Court pursuant to 42 USC § 1983 for violation of his due process and free speech rights under the United States Constitution.
Further, claimant could have raised his state constitutional causes of action in the context of an Article 78 proceeding in New York State Supreme Court.
The claim fails to state a cause of action in the Court of Claims for violation of claimant's constitutional right to due process of law and to free speech.
Finally, it is well-settled that "[p]ublic entities remain immune from negligence claims arising out of the performance of their governmental functions" (Miller v State of New York 62 NY2d 506, 510 [1984]). Further, "[a] public employee's discretionary acts--meaning conduct involving the exercise of reasoned judgment--may not result in the municipality's liability even when the conduct is negligent" (Lauer v City of New York, 95 NY2d 95, 99 [2000]). Defendant's investigation of claimant's conduct underlying the misbehavior report is a governmental discretionary function for which defendant may not be subjected to liability for negligence.
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.
August 10, 2016
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion For Permission to File a Late Claim, filed May 23, 2016; 2. Affidavit of Anthony Rucano, sworn to May 17, 2016, and annexed exhibits; 3. Affirmation of Michael T. Krenrich, dated June 15, 2016.