Opinion
# 2011-015-244 Claim No. 115306 Motion No. M-79690
07-05-2011
KEVIN WEEMS v. THE STATE OF NEW YORK
Synopsis
Proposed late claim for wrongful confinement and negligent hiring was barred by applicable Statute of Limitation. In any event, no claim for negligent hiring lies where it is alleged that the employees were acting within the scope of their employment. Case information
UID: 2011-015-244 Claimant(s): KEVIN WEEMS Claimant short name: WEEMS Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115306 Motion number(s): M-79690 Cross-motion number(s): Judge: FRANCIS T. COLLINS Claimant's attorney: Kevin Weems, Pro Se Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: By: Thomas R. Monjeau, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: July 5, 2011 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, a pro se inmate, moves for late claim relief pursuant to Court of Claims Act § 10 (6) and/or to amend the instant claim to add a cause of action for wrongful confinement.
The proposed claim, submitted in support of claimant's motion, alleges causes of action for bailment and wrongful confinement (denominated as claimant's first cause of action) and negligent hiring, training and supervision (claimant's second and third causes of action) related to the confiscation of a typewriter and imposition of a 30-day period of solitary confinement allegedly imposed on March 29, 2008 following a Tier II disciplinary hearing in which claimant was found guilty of possessing contraband. Claimant contends the alleged contraband, a typewriter, rightfully belonged to him and that prison officials violated his due process rights in conducting the disciplinary hearing in his absence. Claimant unsuccessfully pursued an administrative appeal and thereafter commenced an article 78 proceeding in the Supreme Court, which was transferred to the Appellate Division, Third Department. According to the allegations in the proposed claim, the "Deputy Supt. M. Sheahan, at the Southport C.F., discreetly and secretly, forward a letter, dated February 12, 2010 to the Appellate Division Court . . . that he, Deputy Supt. M. Sheahan, had reviewed the March 29, 2008, disciplinary decisions and had reversed and expunged the decisions previously rendered by Officials at the Great Meadow, c.f." (proposed Notice of Claim, ¶ Fifth).Claimant alleges he was notified of the reversal on June 7, 2010. He then filed an administrative claim for the loss of the typewriter on June 23, 2010, which was denied on July 29, 2010. His appeal of the denial was disapproved on September 1, 2010. The original claim alleged a variety of causes of action having nothing to do with the causes of action now proposed to be asserted. Inasmuch as the proposed causes of action are untimely under Court of Claims Act § 10 (3), (3-b) and (9), late claim relief is necessary to either amend the existing claim or to file a new one. Analysis will therefore begin with the criteria set forth in Court of Claims Act § 10 (6).
Disciplinary rule 113.15 states: "An inmate shall not purchase, sell, loan, give or exchange a personally owned article without authorization" (7 NYCRR 270.2).
The quoted excerpt is uncorrected.
Either the same allegations or remarkably similar substantive allegations were raised by the claimant in two article 78 proceedings in which claimant's disciplinary determinations of guilt were affirmed by the Appellate Division, Third Department (Matter of Weems v Fischer, 75 AD3d 681 [2010], lv dismissed 15 NY3d 917 [2010]; Matter of Weems v Fischer, 82 AD3d 1454 [2011]). For the purposes of the instant motion, however, the truth of claimant's assertion that the disciplinary determination was administratively reversed will be assumed.
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following 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."
The first issue for determination upon a late claim motion is whether the application is timely. Subdivision 6 of Section 10 requires that a motion to file a late claim be made "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." A claim for wrongful confinement accrues when the confinement terminates (Charnis v Shohet, 2 AD3d 663 [2003]; Jones v Town of Johnstown, 41 AD2d 866 [1973]; Ramirez v State of New York, 171 Misc 2d 677 [Ct Cl 1997]) and the applicable statute of limitations for such a claim is one year (CPLR 215 [3]). Claimant alleges he was confined for a period of 30 days following the disciplinary hearing on March 29, 2008. As a result, the proposed claim for wrongful confinement is barred by the statute of limitations.
In addition to the cause of action for wrongful confinement, claimant alleges causes of action for negligent hiring, training and supervision of its employees. The statute of limitations applicable to such causes of action is three years (see CPLR 214 [5]). Since the proposed claims for negligent hiring, training and supervision accrued no later than the date the disciplinary charges were levied and the hearing was conducted, claimant's application for late claim relief on his negligence causes of action is untimely (see Murray v City of New York, 283 AD2d 560 [2001]).
Moreover, causes of action for negligent hiring, training or supervision do not lie where it is alleged the employees were acting within the scope of their employment when the incident occurred (Segal v St. John's Univ., 69 AD3d 702 [2010]; Passucci v Home Depot, Inc., 67 AD3d 1470 [2009]; Coville v Ryder Truck Rental, Inc., 30 AD3d 744 [2006]). Inasmuch as claimant alleges the conduct of defendant's employees occurred when they were "all acting within the scope . . . of their authority and employment" these causes of action are meritless as a matter of law (proposed claim, First Cause of Action, ¶ 1).
With respect to the claimant's proposed bailment cause of action arising from the alleged failure of the Department of Correctional Servicesto return his typewriter following the administrative reversal of the disciplinary determination, late claim relief is unavailable (see Roberts v State of New York, 11 AD3d 1000 [2004]).
The Department of Correctional Services is now known as the Department of Correction & Community Supervision.
Based on the foregoing, claimant's motion is denied in its entirety.
July 5, 2011
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Notice of motion dated March 28, 2011;
Affidavit of Kevin Weems sworn to March 28, 2011 with exhibits;
Reply affirmation of Thomas R. Monjeau dated April 21, 2011;
Letter dated April 25, 2011 from Kevin Weems.