Opinion
# 2015-044-546 Claim No. None Motion No. M-87023
09-30-2015
GUILLERMO TORRES v. THE STATE OF NEW YORK
GUILLERMO TORRES, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General
Synopsis
Court denies inmate claimant's untimely motion for permission to late file and serve and/or treat notice of intention as a claim.
Case information
| UID: | 2015-044-546 |
| Claimant(s): | GUILLERMO TORRES |
| Claimant short name: | TORRES |
| 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-87023 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | GUILLERMO TORRES, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 30, 2015 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant, an inmate proceeding pro se, moves for permission to file and serve a late claim to recover for damages allegedly suffered as a result of his wrongful confinement in a Special Housing Unit (SHU) as the result of a disciplinary hearing held in October 2012 and December 2012 while he was in the custody of the Department of Corrections and Community Supervision (DOCCS) at Elmira Correctional Facility. In the alternative, movant seeks permission to treat the notice of intention to file a claim as a claim. Defendant State of New York (defendant) opposes the motion for late claim relief. Movant replies.
The Court notes that defendant does not address the alternate relief sought by movant.
A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act § 10 [6]). The proposed claim alleges a cause of action for wrongful confinement, a "species" of the intentional tort of false imprisonment (Gittens v State of New York, 132 Misc 2d 399, 407 [Ct Cl 1986]). The statute of limitations for wrongful confinement is one year (CPLR 215 [3]) and accrues on the date that the claimant is released from confinement (Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]; Roche v Village of Tarrytown, 309 AD2d 842, 843 [2d Dept 2003]; Nunez v City of New York, 307 AD2d 218, 219 [1st Dept 2003]).
The proposed claim is attached as Exhibit 2 to the motion papers. There are 22 exhibits attached to the proposed claim.
In his proposed claim, movant alleges that he was issued a misbehavior report on October 14, 2012 and confined in SHU. After the disciplinary hearing was completed, movant was sentenced to, among other things, 18 months confinement in SHU with 6 months suspended. The confinement started as of October 14, 2012 and movant was to be released on October 14, 2013. On February 11, 2013, the disciplinary sentence was affirmed on administrative appeal. Movant also commenced a CPLR Article 78 proceeding challenging the disciplinary determination. By Decision and Order dated January 31, 2014 and entered February 5, 2014, Supreme Court, Chemung County granted the petition and ordered that all references to the disciplinary proceeding be expunged from movant's institutional record and his good time allowance be restored (Matter of Torres v Fischer, Sup Ct, Chemung County, Feb. 5, 2014, Brockway, J., Index No. 2013-1560).
Proposed Claim, Exhibit 6.
Proposed Claim, Exhibit 7.
Proposed Claim, Exhibit 8. A subsequent motion to reargue by respondents Commissioner Brian Fischer and DOCCS was denied by order dated May 29, 2014 and entered June 4, 2014 (Proposed Claim, Exhibit 16).
Movant does not indicate when he was released from SHU. However, he does allege that on March 19, 2013, he was notified that his SHU confinement would be reduced by 90 days. Based upon this allegation, movant could not have been released any earlier than July 16, 2013 (90 days before his scheduled release date of October 14, 2013). Moreover, movant's cause of action accrued, at the latest, on January 31, 2014, the date when Supreme Court signed the Decision and Order which specifically stated that movant "[had] already served his sentence in the special housing unit" (id. at 3). Regardless of whether the cause of action accrued on July 16, 2013 or January 31, 2014, this motion mailed on July 2, 2015 was not made within the one year statute of limitations for a wrongful confinement cause of action (CPLR 215 [3]; Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2d Dept 2001]). Accordingly, this motion for permission to file and serve a late claim is denied as untimely.
In the alternative, movant seeks permission to treat his notice of intention to file a claim as the claim. Court of Claims Act § 10 (8) (a) provides that:
[a] claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion 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; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant.
A notice of intention dated September 17, 2013 (the First Notice) is attached to the proposed claim as Exhibit 21. On September 23, 2013, movant served the First Notice upon defendant by certified mail, return receipt requested. The First Notice alleges that movant was sent to SHU on October 14, 2012 based upon the alleged violation of Prison Disciplinary Rule 100.10. Movant further asserts that a Tier III disciplinary hearing was concluded on December 14, 2012 and as a result, he was unlawfully confined for an extended period of time. Notably, the First Notice does not state the date on which movant was released from his confinement. The First Notice was timely with respect to a cause of action for wrongful confinement which accrued between June 25, 2013 and September 23, 2013, i.e. within the 90-day period prior to its service (Court of Claims Act § 10 [3-b]). However, this motion is not timely, as it was made on July 2, 2015 (Matter of Unigard, 286 AD2d at 59-60), more than one year after the latest date that the one year statute of limitations for a wrongful confinement cause of action could have expired (September 23, 2014) (CPLR 215 [3]). Accordingly, this motion for permission to treat the First Notice as a claim is not timely and is denied (Court of Claims Act § 10 [8]).
Movant has also included a notice of intention dated July 21, 2014 which was served on July 24, 2014 (the Second Notice). The Second Notice similarly indicates that movant was sent to SHU on October 14, 2012 based upon an alleged violation of Prison Disciplinary Rule 100.10 and was "unlawfully, willfully, intentionally and maliciously confined and released from such confinement after serving an extended period amount [sic] of time." Again, movant does not state when he was released from confinement. The Second Notice would be timely with respect to a cause of action which accrued no more than 90 days before it was served (Court of Claims Act § 10 [3-b]), that is between April 25, 2014 and July 24, 2014. However, because movant's cause of action concerning the October 14, 2012 incident accrued at the latest on January 31, 2014 (see supra), the Second Notice served more than 90 days thereafter is untimely (Court of Claims Act § 10 [3-b]). To the extent that movant seeks permission to treat the Second Notice as a claim, it was not timely served and the motion must be denied (Court of Claims Act § 10 [8]).
Accordingly, movant's Motion No. M-87023 for permission to file and serve a late claim and/or to treat the notice of intention as a claim, is denied in its entirety.
The Court notes that if movant had been released from SHU confinement on July 16, 2013 (90 days early), the First Notice would have extended the time in which to file and serve a claim until July 16, 2014 (Court of Claims Act § 10 [3-b]). Although there is no indication that movant filed and served a claim by that date, the Court notes that on June 4, 2015, he did file Claim No. 126244 which pertains to the same October 14, 2012 incident. A review of Claim No. 126244 and its several attached exhibits reveals that it is virtually identical to the proposed claim and attached exhibits in this motion.
The Second Notice is attached to the Proposed Claim as Exhibit 22.
Proposed Claim, Exhibit 22 at 2.
Moreover, this motion made on July 2, 2015 is also untimely, having been made more than one year after January 31, 2014.
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September 30, 2015
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on movant's motion: 1) Notice of Motion filed on July 9, 2015; Affidavit of Guillermo Torres, sworn to on July 2, 2015, and attached exhibits. 2) Affirmation in Opposition of Douglas H. Squire, Assistant Attorney General, dated August 4, 2015, and attached exhibit. 3) Reply Affidavit of Guillermo Torres, sworn to on July 29, 2015 and attached exhibits.