Opinion
# 2011-041-026 Claim No. 119856 Motion No. M-80018
07-29-2011
SALVATORE SCARDINO v. THE STATE OF NEW YORK
Synopsis
Claim alleging that defendant unlawfully confined claimant by adding term of post-release supervision to claimant's criminal sentence is dismissed for failure to state a cause of action. Case information
UID: 2011-041-026 Claimant(s): SALVATORE SCARDINO Claimant short name: SCARDINO Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) The caption is amended sua sponte to reflect the only : proper defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): 119856 Motion number(s): M-80018 Cross-motion number(s): Judge: FRANK P. MILANO Claimant's attorney: NONE HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: By: Michael T. Krenrich, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: July 29, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant moves to dismiss the claim for failure to state a cause of action. Claimant has not appeared in opposition to the motion.
The claim alleges that defendant administratively, and unlawfully, added a five-year period of postrelease supervision to claimant's three-year determinate criminal sentence resulting in claimant being imprisoned twice for violating the terms of the administratively imposed postrelease supervision. The claim sounds in wrongful confinement.
To establish that he was wrongfully confined, claimant must prove that "(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]).
In Ortiz v State of New York (78 AD3d 1314, 1315 [3d Dept 2010], aff'd 2011 NY Slip Op 05367 [2011]), the court held, under similar circumstances, that "DOCS's actions in administratively imposing postrelease supervision in the first place and also in confining individuals for a violation of administratively imposed postrelease supervision are privileged."
Because the alleged confinement was privileged, the claim fails to state a cause of action for wrongful confinement.
Claimant also alleges that defendant's administrative imposition of postrelease supervision violated his federal and state constitutional rights. Claimant's potential state constitutional cause of action will be considered first.
Although the Court of Appeals has recognized a narrowly defined cause of action for a state constitutional tort in the Court of Claims (Brown v State of New York, 89 NY2d 172, 177-178 [1996]), "no such claim will lie where the claimant has an adequate remedy in an alternate forum" (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1150 [3d Dept 2009]; see Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]; Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]). Claimant could have raised his state constitutional claim in the context of an article 78 proceeding in supreme court (see Bullard v State of New York, 307 AD2d 676, 678-679 [3d Dept 2003]). Claimant could have also pursued a state constitutional claim in New York State Supreme Court (Haywood v Drown, 129 S Ct 2108 [2009]). His state constitutional tort claim thus "does not lie" in the Court of Claims (Shelton, 61 AD3d at 1151).
With respect to the allegation that claimant's federal constitutional rights were violated, the law is settled that "claims for damages against the State based on alleged deprivations of rights under the US Constitution are beyond the jurisdiction of the Court of Claims" (Shelton, 61 AD3d at 1151; see Matter of Gable Transport, Inc. v State of New York, 29 AD3d 1125 [3d Dept 2006]; Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]; Zagarella v State of New York, 149 AD2d 503 [2d Dept 1989]; Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986]).
Claimant's causes of action alleging violation of his state and federal constitutional rights fail to state a cause of action.
The defendant's motion to dismiss the claim is granted. The claim is dismissed.
July 29, 2011
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion, filed June 17, 2011;
2. Affirmation of Michael T. Krenrich, dated June 17, 2011, and annexed exhibit.