Opinion
111704.
Decided June 18, 2008.
EDWARD NELSON, Pro se, for Claimant.
ANDREW M. CUOMO, Attorney General of the State of New York, Belinda A. Wagner, Assistant Attorney General, for Defendant.
Claimant was sentenced in 1995 to an aggregate term of incarceration of three to nine years upon his conviction for drug-related crimes. After serving part of his sentence, he was granted parole release. Claimant was thereafter charged with violations of parole and, following a final revocation hearing, the charges were sustained on August 15, 2000 and claimant's parole was revoked and restored with mandatory attendance at the Willard Drug Treatment Campus (hereinafter "Willard") for ninety days. Following this disposition, claimant remained in the custody of the Westchester County Department of Corrections for a period of 108 days, or until December 1, 2000, at which time he entered a State reception center. He has commenced this proceeding seeking compensation for injuries allegedly sustained as a result of defendant's failure to timely transfer him to Willard. Pending before the Court are claimant's motions for permission to amend the amended claim and to compel discovery, and defendant's motion for summary judgment dismissing the claim. The parties oppose each other's motions.
Claimant disputes defendant's assertion that he was required to "enter and complete" the Willard program. Whether he was required to complete the program is of no moment, however, as claimant refused to enter the Willard program.
Defendant's Motion for Summary Judgment
"Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it should only be employed when there is no doubt as to the absence of triable issues'" ( Kolivas v Kirchoff , 14 AD3d 493 [2d Dept 2005], quoting Andre v Pomeroy, 35 NY2d 361, 364). It is well established that a movant for summary judgment must demonstrate, by proof in admissible form, the right to judgment as a matter of law ( see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067). If the movant establishes prima facie entitlement to summary judgment, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact ( see Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 562). However, when a movant fails to demonstrate its entitlement to summary judgment as a matter of law in the first instance, the motion must be denied ( see Winegrad v New York University Medical Center, 64 NY2d 851, 853; Sauzo v Weiss , 11 AD3d 220 , 221 [1st Dept 2004]).
The amended claim asserts causes of action for "negligence per se" and wrongful confinement, and the merits of defendant's motion as against each of them which will be addressed in turn.
The claim also includes a cause of action related to an allegedly unlawful search of claimant's person while he was in the custody of the Westchester County Department of Corrections. During discovery, claimant stated "I'm not going to pursue that cause of action" ( see Affirmation of Belinda A. Wagner, AAG, in Opposition to Claimant's Motion to Amend, dated Sept. 17, 2007, Exhibit F, p. 42). Claimant does not dispute the Assistant Attorney General's statement that he has withdrawn that cause of action from either the amended claim or the proposed amended claim ( see Memorandum of Law in Support of Defendant's Motion for Summary Judgment, p. 1, fn 1; Claimant's Response to Defendant's Affirmation in Opposition to Claimant's Motion to Amend, sworn to Oct. 1, 2007), and accordingly, that cause of action will not be addressed in this decision.
Negligence Per Se
Negligence per se may arise from "violation of a State statute that imposes a specific duty" ( Elliott v City of New York, 95 NY2d 730, 734). Here, the claim alleges, and claimant argues, that defendant violated Criminal Procedure Law § 430.20 (1) because it failed to accept claimant into a State correctional reception center within ten days after his parole was revoked and restored with mandatory Willard attendance. CPL § 430.20 (1) requires that "[w]hen a sentence of imprisonment is pronounced . . . the defendant must forthwith be committed to the custody of the appropriate public servant" (emphases added). In support of its motion, defendant correctly contends that CPL § 430.20 (1) applies when a defendant has been judicially sentenced to a period of incarceration, and not when, as here, parole has been revoked and restored by actions of the Division of Parole ( cf. People ex rel. Ortiz v Poole, 11 Misc 3d 1064[A] [Sup Ct, Seneca County 2006] [deciding the applicability of CPL § 410.91(1)]; People ex rel. Ryniec v Willard Drug Treatment Campus, 11 Misc 3d 1088[A] [Sup Ct, Seneca County 2006]; Ayala v Williams, 7 Misc 3d 1025[A] [Sup Ct, Seneca County 2005]; but see People ex rel. Morejon v New York State Board of Parole, 183 Misc 2d 435 [Sup Ct, Bronx County 1999]). Accordingly, CPL § 430.20 (1) is inapplicable as a matter of law, and defendant's motion for summary judgment as against the cause of action for negligence per se must be granted.
Claimant cites Matter of Ayers v Coughlin ( 72 NY2d 346 [1988]), for the proposition that "forthwith" within the meaning of CPL § 430.20 (1) has been construed to mean ten days unless there has been a demonstrated need to depart from that period of time ( see Claimant's Memorandum of Law, Nov. 19, 2007, at 9-10). Because CPL § 430.20 is inapplicable here, as discussed infra, this decision need not address whether claimant's interpretation of Ayers and its progeny is accurate.
Wrongful Confinement
A cause of action for damages arising from wrongful confinement contains four elements: "that the defendant intended to confine the plaintiff, that the plaintiff was conscious of the confinement and did not consent to the confinement, and that the confinement was not otherwise privileged" ( Martinez v City of Schenectady, 97 NY2d 78, 85; see Broughton v State of New York, 37 NY2d 451, 456, cert denied sub nom Schanbarger v Kellogg, 423 US 929; Pratt v State of New York, UID No. 2008-030-005, Claim No. 110574, Scuccimarra, J. [Jan. 15, 2008]). The first three elements of this cause of action are not disputed; defendant's liability in this case turns upon whether or not its confinement of claimant in the Westchester County jail for 108 days was privileged. Confinement is privileged to the extent that it is imposed "under color of law or regulation, specifically in accordance with regulations" ( Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]).
Defendant argues that it is entitled to judgment as a matter of law because "claimant has failed to show [and cannot show] that defendant has violated any legislative or regulatory directive in its delay in transferring claimant to the Willard program" (Memorandum of Law in Support of Defendant's Motion for Summary Judgment, at 5). This argument is flawed in two respects.
First, as the party charged with the tort of wrongful confinement, it is defendant and not claimant who bears the burden of proving that confinement was privileged ( see Hollender v Trump Village Cooperative, Inc., 58 NY2d 420, 425; Gonzalez v State of New York, 110 AD2d 810, 812, appeal dismissed 67 NY2d 647; Fernandez v State of New York, 2002 NY Slip Op 50510[U], *9 [Ct Cl 2002]; compare Peterson v State of New York, UID # 2007-015-161, Motion Nos. M-72344, CM-72519, Collins, J. [Mar. 20, 2007] [movant for late claim relief did not adequately demonstrate merit of the cause of action when he did not explicitly or implicitly allege lack of privilege in the proposed claim]). More particularly, as the party seeking summary judgment as a matter of law, it is defendant's initial burden to demonstrate its entitlement thereto and thus, its burden to demonstrate that claimant's confinement was imposed pursuant to statute or in accordance with regulation ( see Gittens v State of New York, supra).
Defendant's verified answer to the amended claim does not assert the affirmative defense of privilege. However, that omission is not fatal to defendant's summary judgment motion because the defense should not come as a surprise to claimant ( see Rogoff v San Juan Racing Assn., 77 AD2d 831 [1st Dept 1980], affd 54 NY2d 883 [1981]; see also Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR 3212:11). Lack of privilege is an element of the cause of action for unlawful confinement, so the defense of privilege is one that claimant should be prepared to meet, even if unpleaded.
In support of its motion, defendant does not cite any statutory or regulatory source of authority to hold claimant at a correctional facility following the final revocation hearing, after the determination to restore his parole and pending his transfer to Willard. While Executive Law § 259-i (3)(a) defines the circumstances under which a parolee may be detained prior to a preliminary hearing on a violation, there is no similar express authority to be found in Executive Law § 259-i (3)(f) or (g), which address revocation hearings and their sequelae. To the extent defendant argues that its authority to detain claimant flowed from the final revocation hearing and the decision thereupon, defendant misapplies the privilege that arises when a defendant confines a person pursuant to a facially valid order of commitment or warrant ( see e.g. Mills v Pappas, 174 AD2d 780, [3d Dept 1991], appeal dismissed and lv denied 78 NY2d 1121, cert denied 504 US 971). Here, the only document upon which defendant apparently relies is the decision of the Administrative Law Judge revoking and restoring claimant's parole with mandatory Willard. Even assuming that the ALJ who authored the written decision of August 15, 2000 was authorized to direct or order claimant's temporary incarceration, the decision is silent with respect to incarceration ( see Wagner Affirmation, Exhibit D, R150-154). In the absence of a prima facie demonstration of its authority to hold claimant after its revocation and restoration of claimant's parole, defendant's motion for summary judgment cannot be granted.
Second, even assuming, arguendo, that defendant established that it was authorized to direct claimant's temporary incarceration pending his transfer to Willard, defendant has not demonstrated that the duration of claimant's temporary incarceration is privileged as a matter of law. Defendant correctly contends that there are "[n]o statutory or regulatory time requirement by which a parole violator has to be delivered to Willard" ( Ayala v Williams, 7 Misc 3d 1025[A], supra; see People ex rel. Jankowski et al. v Williams, Sup Ct, Seneca County, Index No. 37435, Bender, J. [May 15, 2006]; Executive Law § 259-i[e][x]; 9 NYCRR 8005.20 [c][2]). Nevertheless, this Court cannot agree that the mere absence of an express time limitation on defendant's purported authority to incarcerate a parolee establishes a privilege to hold claimant indefinitely as a matter of law, as defendant suggests. To accept such a position would mean that defendant's pre-Willard confinement of a parolee in a county jail for a lengthy period of time for a year, or two, or even more would be lawful when, in fact, courts presented with habeas corpus petitions from parolees subject to pre-Willard incarceration have held that the State's authority to confine such parolees is not unlimited ( see e.g. People ex rel. Woelfle v Poole , 15 Misc 3d 1101 [A] [Sup Ct, Seneca County 2007]; People ex rel. Ryniec v Willard Drug Treatment Campus, 11 Misc 3d 1088[A] [Sup Ct, Seneca County 2006]; People ex rel. Davis v Superintendent of Willard Drug Treatment Campus , 11 Misc 3d 1072[A] [Sup Ct, Seneca County 2006]). Rather, the legality of an extended period of pre-Willard incarceration is determined upon the facts or lack thereof bearing upon the reasonableness of the period of incarceration in the particular case ( see e.g. People ex rel. Woelfle v Poole, supra; Ayala v Williams, supra; see also People ex rel. Angelos v Poole, 9 Misc 3d 772, 773-774 [Sup Ct, Seneca County 2005]). In support of the instant motion for summary judgment, defendant offers no evidence addressing the reasonableness of the period of 108 days during which claimant was incarcerated at the Westchester County jail while awaiting transfer to Willard, and thus, it has not demonstrated that the duration of claimant's temporary incarceration was privileged. Accordingly, defendant has not established its right to judgment as a matter of law on claimant's cause of action for wrongful confinement.
"The purpose of habeas corpus is to test the legality of the detention of the person who is the subject of the writ . . . It strikes at unlawful imprisonment or restraint of the person by state'" ( People ex rel. Robertson v New York State Division of Parole, 67 NY2d 197, 201 [1986], quoting People ex rel. Duryee v Duryee, 188 NY 440 [1907] [emphases added]).
Defendant's further arguments in support of summary judgment
Defendant's brief includes several additional points in support of its motion, each of which warrant little discussion. Defendant's contention that claimant suffered no damages because he has no right to parole release prior to his maximum expiration date is misplaced, as claimant was incarcerated at the Westchester County jail after he had been restored to parole status. Thus, he had more than a mere expectancy of release based upon the parole statutory scheme ( compare Barna v Travis, 239 F3d 169 [2d Cir 2001] [inmates seeking review of denial of parole have no legitimate expectation of parole release]). If claimant was, in fact, incarcerated unlawfully, he may have suffered an injury for which defendant must answer in damages.
Defendant's arguments invoking absolute immunity and principles of res judicata or collateral estoppel are not properly advanced because neither of these affirmative defenses was asserted in defendant's answer to the amended claim ( see CPLR 3018 [b]). Each of these defenses will rely on facts that are not raised by the amended claim ( compare footnote 4, supra). Moreover, with respect to the defense of absolute immunity, defendant has failed to present any admissible proof in support of its argument that defendant did not exceed the scope of its authority, and thus, it has failed to demonstrate its entitlement to judgment as a matter of law. Defendant's apparent argument that the availability of equitable remedies on petitions for habeas corpus relief or pursuant to CPLR Article 78 somehow preclude a claim for damages for wrongful confinement is unpersuasive in the absence of authority for that proposition.
In sum, because defendant has not demonstrated its entitlement to judgment as a matter of law, its motion for summary judgment on the unlawful confinement cause of action must be denied.
Claimant's Motion to Compel Discovery
Claimant moves pursuant to CPLR 3124 for an order compelling defendant to appear at a deposition, as well as ordering the disclosure of certain materials. The Court will conduct a conference pursuant to section 206.8 of the Uniform Rules for the Court of Claims ( 22 NYCRR § 206.8 [b]) to resolve the outstanding discovery issues. Claimant's discovery motion will be held in abeyance pending that conference.
Claimant's Motion to Amend the Claim
Claimant and his wife move for permission to amend the amended claim, in three essential respects. The motion seeks to increase the measures of damages resulting from defendant's alleged negligence per se in failing to transfer claimant to Willard in accordance with CPL § 430.20 (1); it seeks to add damages for wrongful confinement for a period of 728 days, which appears to include a substantial period of incarceration in addition to the 108 days during which he was confined at the Westchester County jail; and, it seeks to add claimant's wife as a party and to assert her claim for loss of consortium for a period of 728 days ( see Motion to Amend Claim, sworn to July 31, 2007, Exhibit A).
"A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court" (CPLR 3025 [b]). While leave to amend or supplement pleadings "shall be freely given" ( id.), whether to grant or deny the motion is a matter within the discretion of the court ( see Albany-Plattsburgh United Corp. v Bell, 307 AD2d 416, 420 [3d Dept 2003], lv denied and dismissed 1 NY3d 620). In considering the motion, relevant factors include the delay in interposing the proposed amendments, movant's excuse for the delay and prejudice to the opposing party ( see id.; Bastian v State of New York , 8 AD3d 764 , 765 [3d Dept 2004]; Sadler v Town of Hurley, 304 AD2d 930, 931 [3d Dept 2003]). Further, "it is incumbent upon a movant to make some evidentiary showing that the claim can be supported'" ( Mathiesen v Mead, 168 AD2d 736, 737 [3d Dept 1990], quoting Cushman Wakefield v John David, Inc., 25 AD2d 133, 135 [1st Dept 1966]).
Turning first to that part of the motion that seeks to increase claimant's ad damnum clause to include damages for wrongful confinement beyond the 108 days he was confined at the Westchester County jail, neither claimant's motion nor his proposed claim set forth any facts or allegations of wrongful confinement subsequent to his transfer to a State reception center on December 1, 2000. The amended claim is based solely on claimant's alleged wrongful confinement during the finite period of confinement in the Westchester County facility prior to his transfer, and claimant appears to be trying to bootstrap subsequent periods of State incarceration onto his claim for wrongful confinement. Claimant's motion and proposed amended claim do not articulate any factual or legal basis for adding damages for an additional 620 days of damages beyond December 1, 2000, and thus, the motion does not demonstrate any merit to the proposed amendment for additional damages. Similarly, the part of claimant's motion seeking "consequential" damages based on certain injuries apparently sustained after his transfer on December 1, 2000 is unexplained in law or fact. Further, claimant's request to increase the amount of damages sustained from defendant's alleged negligence per se must be denied in light of the dismissal of the cause of action for negligence per se ( supra).
That part of the motion seeking to add Patricia Nelson as a named party and to assert her claim for loss of consortium will be denied. As discussed in the preceding paragraph, any potential merit in this derivative claim is limited to the 108 days during which claimant was confined at the Westchester County jail, as the motion does not state any meritorious basis for liability for the confinement of her husband thereafter. The delay in seeking to add Patricia Nelson's derivative claim is substantial, as this motion is brought nearly seven years after her derivative claim accrued upon claimant's transfer from the Westchester County facility on December 1, 2000. It is apparent from the papers submitted on defendant's summary judgment motion that claimant and Patricia Nelson were married at the time he was placed into detention at the Westchester County jail, and any travel expenses, emotional distress and other derivative losses allegedly sustained by Patricia Nelson were known when his alleged wrongful pre-Willard confinement ended. Claimant first served a Notice of Intention to file this claim on February 27, 2001, and the instant motion makes no effort to explain the substantial delay in asserting Patricia Nelson's derivative claim. Claimant's effort to have his claim heard in the Court of Claims has been the subject of three motions, including a motion to treat the Notice of Intention as a claim or for permission to file a late claim, and Patricia Nelson's derivative claim although known at that time was not asserted or even mentioned in any of those motions ( see Nelson v State of New York, UID #2003 030-527, Motion No. M-66308, Scuccimarra, J. [March 31, 2003]; see also Nelson v State of New York, Motion No. M-64828, Scuccimarra, J. [June 4, 2002]; Nelson v State of New York, Motion No. M-70540, Scuccimarra, J. [Nov. 15, 2005]). Substantial discovery has been conducted on this claim, the initial Note of Issue date of February 28, 2007 has already been extended numerous times, and additional discovery related to Patricia Nelson's derivative claim would be of a distinctly different substance than the discovery that has been conducted to date on claimant's causes of action.
Further, the statute of limitations for Patricia Nelson's derivative claim has long ago expired. The departments of the Appellate Division are in disagreement whether leave to amend a pleading to add an untimely derivative claim may be given ( see CPLR 203[f]; Anderson v Carney, 161 AD2d 1002, 1003 [3d Dept 1990]; but see Cahill v Lat , 39 AD3d 1013 , 1014 [3d Dept 2007] [derivative claims properly dismissed as time-barred]; Peteroy v St. Vincent's Med. Ctr. of Richmond, 278 AD2d 295 [2d Dept 2000]; Dowdall v General Motors Corp. , 34 AD3d 1221 [4th Dept 2006]). In the instant claim against the State, however, there exist jurisdictional considerations, as well. In particular, a notice of intention to file a claim against the State must be served upon defendant within 90 days of accrual of the claim, or the claim itself must be served and filed within that same time period ( see Court of Claims Act §§ 10; 11). The Court lacks authority to grant permission to file and serve a late claim if permission to do so is not requested within the expiration of the statute of limitations ( see Court of Claims Act § 10).
In sum, the proposed derivative claim is substantially lacking in merit because it seeks damages far beyond the period of Edward Nelson's alleged wrongful confinement, interposition of the derivative claim is substantially delayed and no excuse is offered for that delay, and the derivative claim is of questionable vitality due to statute of limitations and jurisdictional issues. These considerations, lacking counterbalance in favor of granting the motion to amend the claim, lead the Court to exercise its discretion to deny the motion to add Patricia Nelson as a party and amend the claim to add her derivative claim.
Accordingly, it is
ORDERED, that defendant's motion No. M-74140 for summary judgment dismissing the claim is GRANTED IN PART, and the cause of action for negligence per se is dismissed, and the motion is DENIED IN ALL OTHER RESPECTS, and it is further
ORDERED, that claimant's motion No. M-73828 is DENIED, and it is further
ORDERED, that claimant's motion No. M-73829 is HELD IN ABEYANCE pending a conference with the Court conducted pursuant to section 206.8 of the Uniform Rules for the Court of Claims ( 22 NYCRR § 206.8 [b]).