Opinion
# 2015-029-027 Claim No. 122020 Motion No. M-86197
06-18-2015
STEELE v. THE STATE OF NEW YORK
WILLIAM STEELE, pro se ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: Anthony Rotondi, Assistant Attorney General and Douglas R. Kemp, Assistant Attorney General
Synopsis
Defendant waived its objection to the courts jurisdiction arising from the untimely service and filing of the claim by ignoring the courts prior direction setting a deadline for the motion. Late service and filing implicate personal jurisdiction, not subject matter jurisdiction, since the Court of Claims Act was amended in 1991 to specifically so provide. On the merits of the wrongful confinement claim, the court found in favor of claimant based on the failure of defendant to contradict claimants proof and the court's finding that defendants hearing officer was neither a credible witness nor an unbiased hearing officer.
Case information
| UID: | 2015-029-027 |
| Claimant(s): | WILLIAM STEELE |
| Claimant short name: | STEELE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122020 |
| Motion number(s): | M-86197 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | WILLIAM STEELE, pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: Anthony Rotondi, Assistant Attorney General and Douglas R. Kemp, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 18, 2015 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate in the state correctional system, seeks damages for allegedly wrongful excessive confinement to special housing at Shawangunk Correctional Facility arising from his conviction on charges of fighting and assault on another inmate, a conviction that was ultimately reversed by the Appellate Division, Third Department on claimant's petition pursuant to Article 78 of the CPLR.
At the commencement of trial, defense counsel stood and stated he had a jurisdictional motion to make, ostensibly relating to the subject matter jurisdiction of the court but, in fact, based on defendant's contention that the claim was not timely served and filed in accordance with the requirements of Court of Claims Act section 10. Counsel was directed to submit his motion in writing, post-trial, and such was done, with claimant responding in writing. The parties additionally submitted post-trial memoranda relating to the merits of the claim.
On the motion (M-86197), the court considered the Notice of Motion, Affirmation and Exhibits, Claimant's "Reply Affirmation" as well as the court's prior order (M-83076, filed August 5, 2013) and the entire trial record.
Claimant testified that he was falsely convicted of assaulting another inmate - inmate King - sentenced to, and served, five months (152 days) in solitary (special housing) in a proceeding at which he was denied his right to call witnesses in his defense. Specifically, claimant's position at the time, and at trial, was that the incident had been fabricated by King and that he had been prosecuted by facility officials for ulterior motives. He testified, and the record shows, that he requested King as a witness at the disciplinary hearing and that King did not testify. The Hearing Record Sheet (Ex. 2) completed by the hearing officer does not name King as a witness requested by either claimant or the hearing officer. The Inmate Assistant Form has the "no" box checked in the "agrees to testify" column next to King's name without further elaboration. The form also indicates that claimant had also requested the testimony of Officer Calabrese, the officer to whom King had made the initial report that claimant punched him, but Calabrese did not testify at the hearing either.
Claimant's Article 78 proceeding challenging the conviction was successful, the conviction was annulled and the record was ordered sealed. On defendant's motion for leave to reargue, Supreme Court Justice Breslin held as follows:
"Respondent contends that this court overlooked or misapprehended the facts or the law or mistakenly arrived at the earlier decision. Respondent seeks to obtain a clarification of petitioner's conditional right to call witnesses at his administrative hearing. Respondent argues that the proper remedy is not expungement but rather to remit for a new hearing. This court has not overlooked or misapprehended the facts or the law and therefore the motion is denied."
(Ex. 8, Matter of Steele v Fischer; Sup Ct, Alb Co; Index No. 3492-12; unreported Decision and Order dated Dec. 3, 2012).
The law with respect to an inmate's right to call witnesses at a disciplinary hearing requires that any refusal of a requested witness be investigated and pursued by the hearing officer, and that the results of that investigation be documented as part of the hearing record (Matter of Barnes v LeFevre, 69 NY2d 649 ; Matter of McFadden v Bezio, 92 AD3d 988). Thus, the disciplinary conviction that forms the basis for this claim for wrongful excessive confinement was dismissed without opportunity for a rehearing, with the Appellate Division finding no confusion requiring any clarification with respect to an inmate's right to call witnesses and the hearing officer's obligation to make a serious and documented effort to enforce that right, and similarly finding no merit to the Attorney General's position that there was some confusion as to the applicable remedy.
"The record neither reflects any reason for the witness' refusal nor any indication of any effort by the respondents to ascertain any reason. The fact of the refusal was made known to petitioner upon the recommencement of the hearing which concluded with a finding of petitioner's guilt. Under these circumstances, we conclude that respondents have impermissibly denied to petitioner his right to call witnesses in violation of their own regulations (see, 7 NYCRR 254.5). The hearsay report of a correction officer that a witness refuses to testify unaccompanied by any reason from the witness proffered to the hearing officer for such refusal is not a sufficient basis upon which an inmate's conditional right to call witnesses can be summarily denied. Here, where the record does not reflect any reason for the witness' refusal to testify, or that any inquiry was made of him as to why he refused or that the hearing officer communicated with the witness to verify his refusal to testify, there has been a denial of the inmate's right to call witnesses as provided in the regulations" (69 NY2d 649, 650).
"When petitioner requested those inmates' testimony at the hearing, the Hearing Officer noted that the employee assistance form indicated that both were unwilling to testify. However, that notation alone was not a sufficient basis to summarily deny petitioner's right to call those witnesses and, thus, it was incumbent upon the Hearing Officer to attempt to validate the reasons for their refusals (see Matter of Robinson v Fischer, 68AD3d 1687, 1687-1688 [2009]; Matter of Martinez v Goord, 15 AD3d 737, 738 [2005]). Inasmuch as this amounted to a regulatory violation of petitioner's right to call witnesses, the matter must be remitted for a new hearing (see Matter of Santiago v Fischer, 76 AD3d 1127, 1127 [2010]; Matter of Alvarez v Goord, 30 AD3d 118, 121 [2006]; Matter of Martinez v Goord, 15 AD3d at 738)" (92 AD3d 988, 989-990). The distinction between McFadden and this case is the hearing officer documented his reasons for not calling the inmate's witness, with the result that a judicial reversal merely remits the matter for a new hearing. Where the officer does not document the efforts made to obtain the witness's testimony, and the specific reason for the failure to obtain it, it is considered to be a violation of constitutional rights so serious as to preclude the opportunity for retrial.
Under these circumstances, the immunity from civil prosecution articulated in Arteaga v State of New York (72 NY2 212) does not apply, and defendant does not contend otherwise. Defendant correctly points out that the appellate reversal of the conviction does not automatically translate into recovery of damages for wrongful excessive confinement, a result that can only follow a finding of this court, on the record before it, that claimant was not guilty of the underlying charges. However, prior to reaching this issue and addressing the testimony of the hearing officer, the court must resolve the defendant's dismissal motion. PERSONAL VS. SUBJECT MATTER JURISDICTION
The substance of the motion is that the accrual date of a claim for wrongful excessive confinement is the date the inmate is released from special housing, not the date on which the appellate court (or administrative officer, as the case may be) reverses the conviction. It is often the case, as here, that the inmate has served his sentence prior to the reversal but thinks that the reversal is required in order to file a claim and the claim is thus interposed more than 90 days following accrual.
Subsequent to defendant's service of its answer, claimant moved for an order granting him summary judgment and striking defendant's answer, including the affirmative defenses. The motion for summary judgment was denied and the court noted that four of the affirmative defenses in the answer related to the merits and needed to await trial and that of the three relating to jurisdiction (two relating to service and one relating to timeliness) defendant had withdrawn one but that defendant "does not address the Third Defense (alleging improper service) or the Fourth Defense (alleging untimeliness) and the court cannot determine on the current papers whether there is merit to either of these defenses, both of which allege that the court lacks jurisdiction over the claim." The court went on to note that the claim was ready for trial, and noted that any further motion to be made by either party "shall be made no later that September 16, 2013."
The reason for the court imposing a deadline for the motion was specifically to avoid exactly what happened in this case. A trial was scheduled, with all of the attendant work for the court's staff and that of the Attorney General and all of the expense and inconvenience involved in preparation, attendance of witnesses and the transportation of claimant from another facility. This for a case, according to the Attorney General, over which the court lacks 'subject matter' jurisdiction and which should be dismissed summarily. After ignoring the court's direction that the issue be decided prior to proceeding further, defendant continued to ignore its default in its motion papers, apparently reasoning that 'subject matter' jurisdiction is not only an issue that can be raised at any time but that it is so obvious that it need not even be mentioned and that the court's attempt to have the issue decided was so misguided as to be not even worthy of comment or attempted excuse.
No further motions were made and the claim was scheduled for trial. As noted, at the commencement of trial, the Assistant Attorney General applied to make a motion to dismiss based on lack of jurisdiction, specifically "subject matter" jurisdiction. He was told to submit the motion in writing, which was done.
Although counsel referred to "subject matter" jurisdiction at trial, his motion papers beg the dispositive question herein - whether late service and filing implicate subject matter or in personam jurisdiction - and do not contain that phrase (other than a reference to CPLR 3211 [a] [2] in the Notice of Motion), merely alleging that the claim accrued on claimant's release, it was served more than 90 days later, and that it therefore must be dismissed. There is no question as to when claimant was released or that the claim accrued on that date. The issue, rather, is the effect of defendant ignoring the court's explicit deadline that the motion be submitted and the jurisdictional question be determined prior to trial.
The Court of Claims Act was amended in 1991 to add section 11 (c) (L 1991 ch 625), providing that a defense based on the contention that (1) the claim (or notice of intention to file a claim) was served by an improper method or (2) was served or filed late must be asserted in the answer or it is waived and, once waived, the claim may not be dismissed for the underlying reason. As Judge Collins wrote in Knight v State of New York (177 Misc 2d 181, 183):
"The memoranda contained in the Bill Jacket of chapter 625 of the Laws of 1990 which enacted section 11 (c) clearly disclose that the primary purpose of the Legislature in enacting the subdivision was to remove the time limitations of section 10 and the service and filing requirements of section 11 from the realm of subject matter jurisdiction by making departures from the statutory requirements waivable."
The purpose and effect of section 11 (c) was to "conform the procedures in the Court of Claims to existing law under the [CPLR] in other courts of this state" (Bill Jacket, L 1990, ch 625 ["Bill Jacket"], Mem in Support of Assemblyman G. Oliver Koppell, p 7 )." Attorney General Robert Abrams wrote, in support of changing the law as to manner of service and compliance with the time requirements of section 10:
"court decisions have consistently held that a claimant's failure to meet those time limits . . . deprives the court of subject matter jurisdiction over the claim. Thus, it is currently a non-waivable defect. This Bill would change this rule and make such lateness a waivable defect. . . .
With regard to manner of service, court decisions at the Court of Claims level are split on the question of whether a defect in the method of service . . . is a matter of subject matter jurisdiction - and, thus, non-waivable - or a matter of personal jurisdiction - and, thus, waivable by the defendant. . . . This bill would eliminate any inconsistency or uncertainty on this point."
(Bill Jacket, Mem in Support of Attorney General Robert Abrams, pp 10 - 11, emphasis added).
The extant "split" in the Court of Claims was addressed in Presiding Judge Corbett's comments on the bill, where he noted that some judges had held that defects in manner of service implicated personal jurisdiction while others had "applied a recent Court of Appeals decision (Finnerty v New York State Thruway Authority, 75 NY 721) to require that they be treated as issues of subject matter jurisdiction and not waivable" and that the bill would eliminate that confusion by removing the two situation addressed - improper manner of service and lateness - from Finnerty's holding that the service and filing requirements of the Court of Claims Act related to subject matter jurisdiction (Bill Jacket, Mem in Support of Presiding Judge Donald J. Corbett, Jr., p 17 - 18, emphasis added). Finnerty involved the failure to serve the Attorney General with the claim - an entirely different matter from using an improper method of service, and thus its specific holding was unaffected by the enactment of section 11(c), which does not address non-service. What the enactment of the statute did, however, was to extract manner of service and compliance with section 10's time requirements from that holding by specifically making them waivable defects, no longer falling under the rubric of subject matter jurisdiction. Thus, since section 11(c)'s enactment: "[a] failure to timely and properly serve the claim as required results in a lack of personal jurisdiction, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. In that case, the defense is waived. . . Failure to serve the claim at all results in a lack of subject matter jurisdiction that is not waivable" ( McGlotten v State of New York, UID No. 2008-030-510 [Ct Cl, Scuccimarra, J., Mar 4, 2008]); "Claimant's failure to serve a copy of the claim with the Thruway Authority resulted not in a failure of personal jurisdiction, but in a failure of subject matter jurisdiction, which may not be waived . . .Thus, the section relied upon by claimant does not preserve this claim ( see Court of Claims Act § 11 [c])" ( Johnson v State of New York, 71 Ad3d 1355 - 1356).
As noted in all of the statements in support of the amendment, the distinguishing factor between subject matter jurisdiction and personal jurisdiction is the former is not waivable by the defendant and the latter is (see Robinson v Oceanic Steam Nav. Co., 112 NY 315, 324; D'Angelo v State Ins. Fund, 48 AD3d 400, 402). There is simply no such thing as a defense of lack of subject matter jurisdiction that is waivable by a defendant. Although section 11(c) provides that the "timeliness" defense is waived if defendant fails to include it in its answer or in a pre-answer motion, the specific question presented herein is whether there are any other circumstances under which the defense may be waived, given that it was set forth in the answer. In that regard, the court notes a prior case in which defendant proceeded to trial notwithstanding having asserted lack of jurisdiction arising from regular mail service in the answer and in which the court's review of the file after trial confirmed the allegation of regular mail service. The court specifically noted in the trial decision that, had the defect implicated subject matter jurisdiction, the court would have been obligated to dismiss it on that ground, despite defendant's failure to raise the defense at trial. Nevertheless, the court held that defendant had waived the defense, by trying the case to conclusion without again raising it, and decided the claim on the merits, although it was clear beyond doubt that the claim had been served by regular mail, specifically finding that defendant's conduct had waived the defense, despite it having been duly raised in the answer (Kearney v State of New York, Ct Cl, UID No 2012-029-018 [Mignano, J., April 25, 2012]). The court reaches the same result here.
"As the Court of Appeals has noted, the failure of attorneys to comply with court-ordered deadlines has increasingly become a problem in our court system . . . The failure to comply with deadlines and provide good-faith responses to discovery demands 'impairs the efficient functioning of the courts and the adjudication of claims' . . . The Court of Appeals has also pointed out that '[c]hronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules' . . . , and has declared that '[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity' (Kihl v Pfeffer, 94 NY2d at 123; see generally Cadichon Facelle, 18 NY3d 230 [2011]."
Arpino v F.J.F. & Sons Elec Co., 102 AD3d 201 [2d Dept 2012]).
Thus, the court "has the authority to control its calendar by establishing schedules and timetables" in addition to those generally established by statute and rule (Harrington v Palmer Mobile Homes, Inc., 71 AD3d 1274 [3d Dept 2010]). Here, the court was faced with a claim that defendant alleged was jurisdictionally defective and with motion papers that did not fully address the issue. This was against the background of a claim that was ready to be scheduled for trial, a trial that the court knew would involve all sorts of unnecessary expense and inconvenience if the defendant's allegations were true and the claim dismissed for a jurisdictional reason. It was in order to avoid such waste of both court and agency resources that the court directed that the jurisdictional question be resolved promptly. Yet defendant ignored the direction, received the trial notice without comment, faxed its exhibits to be marked for trial and appeared at trial with at least one state-employed witness and a claimant that had been transported from upstate at state's expense. Counsel then stood and moved to dismiss the claim for lack of "subject matter" jurisdiction, without any reference at all to the history of the claim or the court's prior order or defendant's default of that order. Defendant's motion papers, with argument totaling two sentences, also ignored the question.
As noted, whether a claim was served and filed in accordance with the time requirements of section 10 is a waivable issue of personal jurisdiction, not a question of non-waivable subject matter jurisdiction. The court finds that defendant, by its conduct herein, has waived the defense. Unlike other cases, where a litigant's failure to abide by court ordered deadlines sometimes results in preclusion or default, here the only result is that the claim will be decided on the merits.
CASE IN CHIEF
As defendant contends, and as the court noted in denying claimant's motion for summary judgment, the fact that claimant's conviction was reversed does not automatically entitle him to judgment. The issue of proximate cause must be addressed, and that involves the court in effect recreating a hearing that did not take place and determining the underlying issue of guilt.
In that regard, defendant presented the testimony of Lt. Gerald Gardner, the hearing officer who presided over claimant's Tier III hearing and perhaps the singularly most disrespectful witness this court has experienced in its years on the bench. Slouching in the witness chair, legs splayed before him, hands interlocked behind his head, Gardner's disrespectful disdain for the judicial proceeding at which he was testifying could not have been more apparent. The thrust of his testimony was that the testimony of the alleged victim in the case would have made no difference in his decision and that he would have convicted claimant anyway. Asked what would have been the basis of that decision, he looked at the hearing record (Ex. D) and mechanically read off the list of evidence that had been received at the hearing, concluding that any testimony from the alleged victim of the assault would have been superfluous.
The court has no doubt that Gardner would have convicted claimant regardless of whether King or anyone else testified or what they said. His demeanor at trial sufficiently demonstrated the lack of respect to which he accords to Court of Claims trials, and one could hardly conclude that he brings a more appropriate, unbiased, open-minded judicial temperament to the proceedings over which he presides. Given this officer's demonstrated disdain for both this court and his cavalier attitude toward his own administrative obligations, the court must wonder whether his assignment in regard to disciplinary proceedings should be continued by DOCCS.
Defendant's asserted defense - one of proximate cause, contending that the procedural and constitutional error made no difference in the outcome - is not supported by contending, in effect, "we convict everyone." It is met, or not met, based on this court's finding on the question of whether claimant was guilty of the charges for which he was convicted in derogation of his constitutional rights.
Claimant testified that the charges against him were fabricated for an ulterior reason and that, once they were ascertained to be fabricated, the criminal charges that had been initiated were dropped, things that Gardner did not recall. Gardner also did not recall that Officer Calabrese, the officer to whom King had initially allegedly reported the assault, did not testify. Each of these lapses of memory was consistent with his testimony that it was of no import who testified or what they said. The probative record before the court supports no conclusion other than that claimant was not guilty of the underlying charges, and the court so finds.
The court finds that defendant did not rebut claimant's contentions with any probative evidence whatsoever. The court further finds that claimant has thus met his burden of proof and established a cause of action for wrongful excessive confinement for a period of 152 days and is entitled to recover the sum of $10.00 per day for a total of $1,520.00 together with any filing fee actually paid. Any motions not otherwise decided herein are denied. The Clerk of the Court is directed to enter judgment in accordance herewith.
June 18, 2015
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims