Opinion
# 2016-040-070 Claim No. NONE Motion No. M-88646
09-23-2016
JOHN ZOCCOLI, DIN 98A4768 v. THE STATE OF NEW YORK
John Zoccoli, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG
Synopsis
Motion to serve and file a late Claim pursuant to CCA § 10(6) denied. Lack of appearance of merit.
Case information
| UID: | 2016-040-070 |
| Claimant(s): | JOHN ZOCCOLI, DIN 98A4768 |
| Claimant short name: | ZOCCOLI |
| 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-88646 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | John Zoccoli, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | September 23, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the application of pro se Movant, John Zoccoli, to serve and file a late Claim pursuant to Court of Claims Act § 10(6) is denied.
The proposed Claim, attached to the motion papers, alleges that Movant was incarcerated at Eastern NY Correctional Facility and received a Tier III Misbehavior Report charging him with violating three institutional rules on either May 28, 2014 (proposed Claim, ¶ 6) or June 2, 2014 (id., ¶ 13). At the conclusion of the Tier III Hearing on June 5, 2014, Movant was found guilty of the charges and, inter alia, received 15 months in the Special Housing Unit (hereinafter, "SHU") (id., ¶ 15). On August 29, 2014, the hearing officer's determination was modified on administrative appeal (id., ¶ 42). Movant, thereafter, commenced an Article 78 Proceeding in Supreme Court, Albany County (id., ¶ 43). On June 23, 2016, the Appellate Division, Third Department, issued a Memorandum and Judgment in Matter of Zoccoli v Annucci (140 AD3d 1512, 1513 [2016]), stating:
The Attorney General has advised this Court that the determination at issue has been administratively reversed, all references thereto have been expunged from petitioner's institutional record and the mandatory $5 surcharge has been refunded to petitioner's inmate account. In view of this, the petition must be dismissed as moot (see Matter of Roye v Annucci, 137 AD3d 1392, 1393 [3d Dept] [2016]; Matter of James v Prack, 137 AD3d 1390, 1391 [3d Dept] [2016]).
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. A stated by the Appellate Division, Third Department in Kairis v State (113 AD3d 942):
The applicable statute of limitations for a claim of excessive confinement in the prison disciplinary context depends on whether the claim is predicated on intentional or negligent conduct (see Court of Claims Act § 10[3], [3-b]; Ramirez v State of New York, 171 Misc 2d 677, 680-682 [Ct Cl] [1997]; cf. Vasquez v State of New York, 23 Misc 3d 1101[A] [Ct Cl] [2009], affd 77 AD3d 1229 [3d Dept] [2010]). Such a claim accrues "upon a claimant's release from confinement" (Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept] [2011]).
An intentional tort has a one-year statute of limitations (CPLR 215[3]), while negligence has a three-year statute of limitations (CPLR 214[5]). Here, Movant asserts that the hearing officer was biased, not impartial, relied on facts not in the record, and "exuded an aura of unfairness" (proposed Claim, ¶ 48). He also asserts that Defendant "intended to confine him" and that the "confinement was not privileged" (id., ¶ 51).
The Court concludes that, based upon the information provided in the proposed Claim, Movant is asserting an intentional tort of wrongful confinement, which is a species of the tort of false imprisonment (Gittens v State of New York, 132 Misc 2d 399, 407 [Ct Cl 1986]), so that a one-year statute of limitations applies (CPLR 215[3]). Movant asserts that he was released from SHU on September 4, 2014, thus, "activating the statute of limitations" (Movant's Affirmation in Support, ¶ ). Thus, this Motion, which was received by the Court on May 19, 2016, is untimely as the statute of limitations expired on September 4, 2015. A movant is permitted to file a late claim only if the underlying cause of action is not time barred (Arbor Hill Partners v New York State Commr. of Hous. & Community Renewal, 267 AD2d 675 [3d Dept 1999]; Marine Midland Bank v State of New York, 195 AD2d 871 [3d Dept 1993], lv denied 82 NY2d 661 [1993]). Movant's motion for permission to file a late claim as to a cause of action for wrongful confinement is denied.
In his Affidavit submitted in Opposition to Defendant's Affirmation, Movant asserts that his proposed Claim does not assert any Federal Constitutional issues, but that his "claims are being brought pursuant to the New York State Constitution" (Affidavit in Opposition to Defendant's Affirmation, ¶ 3). As to any such cause of action, a three-year statute of limitations applies to a constitutional tort violation for violation of Mr. Zoccoli's rights (CPLR § 214[5]). Thus, the statute of limitations has not yet expired for any cause of action asserting a violation of State constitutional rights.
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
Perhaps the most important factor to be considered is whether the proposed cause of action has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 [2011], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Movant's burden to show that the cause of action is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
In Brown v State of New York (89 NY2d 172 [1996]), the Court of Appeals "recognized that, when certain requirements are met, a violation of the [New York State] Constitution may give rise to a private cause of action" (Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; see Wagoner v State of New York, UID No. 2008-029-014 [Ct Cl, Mignano, J., Apr. 2, 2008]). In Martinez v City of Schenectady (97 NY2d 78 [2001]), however, the Court of Appeals made it clear that Brown establishes a "narrow remedy," applicable in cases where no other remedy is feasible to provide citizens with "an avenue of redress" when their private interests have been harmed by constitutional violations (Martinez v City of Schenectady, supra at 83; Waxter v State of New York, supra at 1181). Where an adequate remedy could be provided, however, " 'a constitutional tort claim … is [not] necessary to effectuate the purposes of the State constitutional protections … [invoked] nor appropriate to ensure full realization of [claimants'] rights' " (Bullard v State of New York, 307 AD2d 676, 679 [3d Dept 2003], quoting Martinez v City of Schenectady, supra at 83).
In the present case, recognition of the State constitutional cause of action is neither necessary nor appropriate to ensure the full realization of Movant's rights, because the alleged wrongs could have been redressed by an alternative remedy, namely, either in a Federal Court action asserting violations of the Federal Constitution, or in a timely action for wrongful confinement instituted in this Court. Thus, any asserted cause of action alleging violations of Movant's State constitutional rights lacks merit.
The Court concludes, based upon the entire record, that Movant has failed to establish that the claim is not patently groundless, frivolous or legally defective and that a valid cause of action for State Constitutional violations exists. Thus, the Court finds that the proposed cause of action alleging State Constitutional violations lacks the appearance of merit.
Because it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request, Movant's Motion is denied.
September 23, 2016
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Movant's motion to file a late claim pursuant to Section 10(6) of the Court of Claims Act: Papers Numbered Notice of Motion, Affidavit in Support and Exhibits attached 1 Affirmation in Opposition 2 Movant's Affidavit in Opposition to Defendant's Affirmation 3