Opinion
# 2017-041-059 Claim No. NONE Motion No. M-90537
08-29-2017
STERLING STEVENS v. THE STATE OF NEW YORK
STERLING STEVENS Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Thomas R. Monjeau, Esq. Assistant Attorney General
Synopsis
Application to file late claim is denied where allegations fail to provide cause to believe a valid cause of action for wrongful confinement may exist.
Case information
| UID: | 2017-041-059 |
| Claimant(s): | STERLING STEVENS |
| Claimant short name: | STEVENS |
| 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-90537 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | STERLING STEVENS Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Thomas R. Monjeau, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 29, 2017 |
| 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 papers supporting the application include an "affidavit in support of application for leave to file and serve a late notice of intent to file claim," a "notice of intent to file claim," a "verified complaint," an "affidavit in support of verified complaint," a verified "claim," and several exhibits documenting the underlying inmate disciplinary proceeding, the administrative appeal of the inmate disciplinary hearing determination and the commencement of a CPLR Article 78 proceeding challenging the disciplinary determination.
The Court notes that its consideration of the application's merit is not limited to the document entitled "claim." Rather, the various papers supporting the application, described above, will be considered in their entirety (see Dippolito v State of New York, 192 Misc 2d 395, 397 [Ct Cl 2002], which held that in determining a late claim application "the court may examine the proposed causes of action, as well as all submitted papers and exhibits").
The claimant primarily alleges that, as an inmate at Clinton Correctional Facility, he was wrongfully confined to keeplock and/or the Special Housing Unit (SHU) from December 10, 2016 through January 14, 2017 as a result of an erroneous misbehavior report and ensuing disciplinary hearing and determination (see "notice of intent to file claim"). The claimant alleges that the misbehavior report accused claimant of, among other charges, "possessing Contraband, in violation of Rule 113. However, the description of the incident in the MR did not support any of the elements of Contraband, pursuant to Rule 113, and thereby, the MR is facially defective and should have been dismissed at the Disciplinary Hearing . . . [h]ence, Plaintiff was forced to spend twenty-four (24) days in the SHU." (see "notice of intent to file claim").
The disciplinary charges apparently arose as a result of a fight between claimant and a fellow inmate. The misbehavior report charged claimant with "113 Fighting, 106.10 Direct Order, 104.11 Violent Conduct, 104.13 Creating a Disturbance, 107.10 interference." Claimant alleges that the citation of Rule 113 for fighting is incorrect. The misbehavior report, according to claimant, should have cited claimant for violating Rule 100.13 (fighting) rather than 113.
Claimant was found guilty of all of the disciplinary charges after a hearing and the hearing determination was administratively affirmed. Claimant alleges that he "filed an Article 78 on or about February 8, 2017" (see "affidavit in support of verified complaint"). The record does not state the result of the claimant's Article 78 proceeding.
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."
Claimant was allegedly released from confinement, and his claim accrued, on January 10, 2017 (see Santiago v City of Rochester, 19 AD3d 1061, 1062 [4 Dept 2005], lv denied 5 NY3d 710 [2005]: claim for wrongful confinement accrues on "the date on which [claimant's] confinement terminated"). Claimant served his late claim application on May 9, 2017, approximately twenty-nine (29) days beyond expiration of the ninety day filing and service period set forth in Court of Claims Act 10, but well within the CPLR Article 2 limitations period. 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 has failed to offer a reasonable excuse for his failure to timely file and serve the claim. However, "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).
The Court finds that there was only a very limited period of time which elapsed between the accrual date of the cause of action alleging wrongful confinement and service of the application to file a late claim. This, together with the specificity of the papers supporting the application and the existence of easily identifiable disciplinary hearing records, provide defendant ample opportunity to timely investigate the claim as the "delay was minimal and the respondent was not prejudiced thereby" (Hughes v State of New York, 25 AD3d 800 [2d Dept 2006]). In this regard, it is generally recognized that prejudice is more likely to result where a proposed claim involves conditions (such as ice or snow) which are "transitory in nature" Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]). The proposed claim does not arise from a transitory condition.
Section 10 (6) requires that the proposed claim 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, 833-834 [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, based upon personal knowledge, 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 [4 Dept 1978]).
Claimant alleges that one of the charges in the misbehavior report erroneously stated that claimant had violated "Rule 113," a rule which involves alleged possession of contraband, rather than "Rule 100.13," involving fighting. The disciplinary determination issued after the hearing found claimant guilty of all of the charges, including a violation of Rule 100.13 (fighting) even though the misbehavior report misstated the "fighting" rule number as 113.
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 and that the Court lacks subject matter jurisdiction over the claim.
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, with respect to immunity, where employees of the Department of Correctional and Community Services, 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 (see Davidson v State of New York, 66 AD3d 1089, 1089 [3d Dept 2009]; Vasquez v State of New York, 10 AD3d 825 [3d Dept 2004]).
Importantly, not all disciplinary hearing procedural rules and regulations, if violated, form a basis to abrogate the immunity afforded to employees of the Department of Corrections and Community Supervision in commencing and conducting formal inmate disciplinary proceedings. The rule or regulation must implicate minimal due process protections:
"Notably, there is no right to counsel or to confrontation at prison disciplinary hearings. . . Nevertheless, an inmate is entitled to advance written notice of the charges against him; a hearing affording him a reasonable opportunity to call witnesses and present documentary evidence; a fair and impartial hearing officer; and a written statement of the disposition, including the evidence relied upon and the reasons for the disciplinary actions taken" (Sira v Morton, 380 F3d 57, 69 [2d Cir 2004]).
The Court has reviewed the misbehavior report and subsequent disciplinary determination and finds that the claimant was given adequate "advance written notice of the charges against him" (Sira, 380 F3d at 69). The misbehavior report language clearly states that claimant was charged with "fighting," among other alleged violations.
Additionally, the claimant fails to show that he was prejudiced at the hearing by the citation in the misbehavior report of an allegedly incorrect rule number, which is plainly a scrivener's error.
The proposed claim lacks the appearance of merit in view of the immunity from liability afforded to defendant with respect to quasi-judicial inmate disciplinary proceedings.
Based upon a balancing of the factors set forth in Court of Claims Act 10 (6), the Court denies the claimant's application to serve and file a late wrongful confinement claim.
August 29, 2017
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Application for Leave to File and Serve a Late Claim, filed May 30, 2017; 2. Affidavit of Sterling Stevens, sworn to May 9, 2017, and attached exhibits; 3. Affirmation of Thomas R. Monjeau, dated June 19, 2017; 4. Reply Affidavit of Sterling Stevens, sworn to June 28, 2017.