Opinion
# 2017-044-518 Claim No. 126244 Motion No. M-89437 Cross-Motion No. CM-89524
02-17-2017
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
Wrongful confinement claim dismissed as untimely, and request to treat notices of intention as claims denied as notices were also untimely.
Case information
| UID: | 2017-044-518 |
| 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): | 126244 |
| Motion number(s): | M-89437 |
| Cross-motion number(s): | CM-89524 |
| 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: | February 17, 2017 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed this claim (Claim No. 126244) to recover for damages suffered during his allegedly wrongful confinement in a Special Housing Unit (SHU) as the result of a disciplinary hearing commenced in October 2012 and completed in December 2012 while he was in the custody of the Department of Corrections and Community Supervision (DOCCS) at Elmira Correctional Facility. Defendant State of New York (defendant) answered and asserted several affirmative defenses. Claimant now moves for summary judgment or in the alternative, to treat either of two notices of intention to file a claim as a claim. Defendant opposes the motion and cross-moves to dismiss the claim as untimely. Claimant replies and opposes the cross motion.
The Court notes that claimant previously moved (Motion No. M-87023) for leave to file and serve a late claim containing a cause of action for wrongful confinement which pertained to the same disciplinary hearing at issue in this claim (Torres v State of New York, UID No. 2015-044-546 [Ct Cl, Schaewe, J., Sept. 30, 2015]). In the alternative, claimant also moved for permission to treat either of two notices of intention to file a claim as a claim (id.). This Court denied Motion No. M-87023 in its entirety (id.).
The Court will initially discuss the facts as set forth in all papers submitted in order to establish the procedural history of this claim before discussing the merits of any of the motions. In his claim, claimant alleges that he was issued a misbehavior report on October 14, 2012 and immediately confined in SHU. He states that a disciplinary hearing was commenced on October 18, 2012 and was completed on December 14, 2012. Claimant alleges that he was sentenced to, among other things, 18 months confinement in SHU with 6 months suspended. The SHU confinement started as of October 14, 2012 and claimant was scheduled to be released on October 14, 2013. On February 11, 2013, the disciplinary sentence was affirmed on administrative appeal. Thereafter, claimant 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 annulled the disciplinary determination (Matter of Torres v Fischer, Sup Ct, Chemung County, Feb. 5, 2014, Brockway, J., Index No. 2013-1560). 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.
Claimant has attached a copy of Claim No. 126244 as Exhibit 1 to his motion papers. However, the copy of the claim has 22 exhibits attached to it (Exhibits 1-22). In an effort to avoid any confusion when referring to the exhibits, the Court will cite to the exhibits attached to the filed claim rather than those exhibits which are attached to Exhibit 1 of the motion papers. For example, the Hearing Disposition setting forth claimant's disciplinary sentence is cited as Claim, Exhibit 6.
Claim, Exhibit 7.
Claim, Exhibit 8. Supreme Court also ordered that all references to the disciplinary proceeding be expunged from claimant's institutional record and his good time allowance be restored.
Claim, Exhibit 16.
In his affidavit in support of his motion for summary judgment, claimant reiterates the same information as set forth in the claim. He also states that he had served 9 months of his sanction (274 days) when he was released from his SHU sentence on July 14, 2013. Claimant avers that he served a notice of intention to file a claim upon the Attorney General's Office on September 23, 2013, within 90 days of his release from SHU (the First Notice) and served a second notice of intention on July 24, 2014 (the Second Notice). Claimant argues that he timely served this claim on May 29, 2015 and timely filed it on June 4, 2015.
Claimant indicates that he then served an additional 30-day sentence in SHU on an unrelated disciplinary charge and was ultimately released on August 20, 2013 (Affidavit of Guillermo Torres, sworn to Oct. 22, 2016, in Support of Motion at 22).
Claim, Exhibit 21.
Claim, Exhibit 22.
As it is potentially dispositive of the claim on a procedural basis, the Court will initially address defendant's cross motion to dismiss the claim. In an action to recover damages for personal injuries - whether caused by the intentional or unintentional (negligent) conduct of an officer or employee of the State - a claim must be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the claim, unless a notice of intention to file a claim is served upon the Attorney General within 90 days after the accrual of such claim (Court of Claims Act § 10 [3], [3-b]). If a notice of intention is timely served, a claim for wrongful confinement (such as this claim) must be filed and served within one year after accrual (Court of Claims Act § 10 [3-b]). It is well-settled that a cause of action for wrongful confinement - a "species" of the tort of false imprisonment (Gittens v State of New York, 132 Misc 2d 399, 407 [Ct Cl 1986]) - accrues on the date that the claimant is released from confinement (Campos v State of New York, 139 AD3d 1276 [3d Dept 2016]; see also 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]).
Claimant's reliance on Ramirez v State of New York (171 Misc 2d 677 [Ct Cl 1997]) to support his argument that this claim is governed by the two-year limitation period set forth in Court of Claims Act § 10 (3) is misplaced. In Ramirez (171 Misc 2d at 682-683), the claimant's wrongful confinement resulted from defendant's failure to release the claimant upon the expiration of his disciplinary sentence, i.e. ministerial neglect. In this case, claimant's allegedly wrongful confinement is based upon the intentional imposition of a disciplinary sentence after a disciplinary hearing which was subsequently reversed (see e.g. Weems v State of New York, UID No. 2011-015-244 [Ct Cl, Collins, J., July 5, 2011]; Linares v State of New York, UID No. 2011-018-221 [Ct Cl, Fitzpatrick, J., June 3, 2011]; Vazquez v State of New York, UID No. 2009-015-122 [Ct Cl, Collins, J., Feb. 10, 2009], n 2, affd 77 AD3d 1229 [3d Dept 2010]). Accordingly, the one-year limitation period set forth in Court of Claims Act § 10 (3-b) is applicable in this instance.
In this case, claimant's cause of action accrued on July 14, 2013, when his SHU confinement associated with the October 14, 2012 incident ended. In order to be timely, a notice of intention must have been served or a claim filed and served by October 15, 2013. Claimant timely served the First Notice on September 23, 2013 and extended the time in which he had to file and serve a claim until July 14, 2014. However, claimant did not serve this claim until May 29, 2015 and did not file it until June 4, 2015. Accordingly, this claim is untimely with respect to the First Notice. Moreover, the Second Notice of intention served on July 24, 2014 was untimely and did not extend the time in which claimant had to file and serve the claim.
Claimant's contention that his cause of action for wrongful confinement did not accrue until the disciplinary determination was judicially reversed is without merit (see Campos, 139 AD3d at 1277 [where the Appellate Division, Third Department rejected the claimant's similar argument that the cause of action did not accrue until the disciplinary determination was administratively reversed]).
Although October 12, 2013 was the 90th day after accrual, because it was a Saturday, the time to serve the notice of intention or to file and serve the claim was extended until the next business day which was October 15, 2013 (General Construction Law § 25-a [1] [Monday, October 14, 2013 was Columbus Day, a public holiday (General Construction Law § 24)]).
To the extent that claimant may be arguing that the applicable date he was released from SHU was August 20, 2013 (Affidavit of Guillermo Torres, sworn to Oct. 22, 2016, in Support of Motion at 23), even if his cause of action accrued on that date, this claim was filed and served more than one year later and is untimely with respect to the First Notice. Moreover, the Second Notice would still be untimely as it was not served within 90 days of August 20, 2013.
Claimant's failure to timely file and serve a claim deprives the Court of jurisdiction (see Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]; Tooks v State of New York, 40 AD3d 1347 [3d Dept 2007], lv denied 9 NY3d 814 [2007]). Accordingly, defendant's cross motion is granted and Claim No. 126244 is dismissed in its entirety. Consequently, that portion of claimant's motion seeking summary judgment is denied as moot.
The Court must now address claimant's alternative requested relief to treat either the First Notice or the Second Notice 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.
As set forth previously herein, the First Notice served on September 23, 2013 was timely with respect to the cause of action for wrongful confinement which accrued on July 14, 2013. However, this motion was not made until October 22, 2016 when claimant mailed it to defendant (Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2d Dept 2001]). Because the motion was made more than one year after the statute of limitations expired on July 14, 2014 (CPLR 215 [3]), claimant's application for permission to treat the First Notice as a claim is denied as untimely (Court of Claims Act § 10 [8]). Further, the Second Notice was not timely served (see supra) and thus cannot be treated as a claim (Court of Claims Act § 10 [8]). Accordingly, that portion of claimant's motion to treat the Second Notice as a claim is also denied.
In conclusion, Claim No. 126244 was not timely filed or served. Accordingly, defendant's cross motion is granted and the claim is dismissed in its entirety. Because the claim has been dismissed, that portion of claimant's cross motion seeking summary judgment is moot. Further, claimant's application to treat the First Notice as a claim was untimely and the Second Notice itself was not timely served. Thus, neither notice of intention may be treated as a claim. Accordingly, claimant's cross motion for summary judgment and in the alternative for permission to treat either of two notices of intention as the claim is denied in its entirety.
Again, even if August 20, 2013 was the accrual date (see n 12, supra), the application for permission to treat the First Notice as a claim was not timely made within one year of that date. Further, the Second Notice was still untimely and could not be treated as a claim. --------
February 17, 2017
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on claimant's motion and defendant's cross motion: 1) Notice of Motion filed on October 31, 2016; Affidavit of Guillermo Torres, sworn to on October 22, 2016 and attached exhibits. 2) Notice of Cross Motion filed on November 17, 2016; Affirmation of Douglas H. Squire, Assistant Attorney General, dated November 15, 2016, and attached exhibits. 3) Reply Affidavit of Guillermo Torres, sworn to on December 1, 2016. Filed papers: Claim filed on June 4, 2015; Verified Answer filed on July 6, 2015.