Opinion
10-18-2021
Gladstone TAYLOR, Claimant, v. The STATE of New York, Defendant.
For Claimant: LAW OFFICES OF FREDERICK K. BREWINGTON, By: Frederick K. Brewington, Esq. For Defendant: HON. LETITIA JAMES, Attorney General for the State of New York, By: Suzette Corinne Merritt, Assistant Attorney General
For Claimant: LAW OFFICES OF FREDERICK K. BREWINGTON, By: Frederick K. Brewington, Esq.
For Defendant: HON. LETITIA JAMES, Attorney General for the State of New York, By: Suzette Corinne Merritt, Assistant Attorney General
Walter Rivera, J.
The following papers numbered 1-3 were read and considered by the Court on movant's application for leave to serve and file a late claim:
Notice of Motion, Attorney's Supporting Affirmation, Movant's Affidavit, Proposed Claim and Exhibits 1
State's Attorney's Affirmation in Opposition 2
Movant's Attorney's Affirmation in Reply 3
Movant seeks leave for permission to serve and file a late claim pursuant to Court of Claims Act § 10 (6). The State opposes the motion. The proposed claim alleges that movant was wrongfully confined at Fishkill Correctional Facility (Fishkill) from January 22 to March 26, 2020, based on a false positive Microgenics Corporation rapid drug screening test that prison authorities knew was unreliable, and disciplinary hearing proceedings that violated several regulations and movant's due process rights. The proposed claim also pleads a violation of movant's civil rights under 42 USC § 1983, which movant now seeks the Court's permission to withdraw without prejudice (Brewington Reply Affirmation ¶ 2). The State does not oppose this request.
The Court has no jurisdiction to adjudicate 42 USC § 1983 claims as the State is not a "person" under the law.
In support of his application, movant submits his own affidavit, an attorney's affirmation, the proposed claim, records of the Department of Corrections and Community Supervision (DOCCS) regarding the incident (Exs. A-D), a federal class action complaint against Microgenics (Ex. E), several news stories about the use of faulty Microgenics drug tests by DOCCS (Exs. F-H), and then Governor Andrew M. Cuomo's Executive Orders (Exs. I-L). The proposed claim refers to movant's affidavit and the annexed exhibits. The State submitted an attorney's affirmation in opposition. Movant submitted an attorney's affirmation in reply.
Specifically, the proposed claim alleges and movant attests in his affidavit the following facts.
On June 26, 2019, movant was transferred and admitted to the Temporary Release Program (TRP) at Fishkill, allowing him to spend five days and four nights a week at home and to work while incarcerated. On January 9, 2020, he was given a Microgenics rapid screening urinalysis test that came back positive for opiates. Movant was shocked because he had not taken opiates. On January 12, 2020, a corrections officer told movant he was removed from the TRP. An Offender Rehabilitation Coordinator wrote a misbehavior report charging movant with a Tier III disciplinary charge for drug use (Rule 113.24) and a charge for violating the TRP rules (Rule 108.14). Movant received the report on January 14, 2020. Before his disciplinary hearing on January 29, 2020, he made several requests that a second urinalysis be done using his sample. A second, confirmatory urinalysis was not done and movant was told that his urine had been thrown out. Based on the one screening test, he was removed from the TRP and prevented from going home and working at Wendy's restaurant, where he was being considered for a promotion. On January 22, 2020, movant was transferred from the residential TRP housing to a general population dormitory, and his good time and privileges were revoked.
Movant's Superintendent's Hearing was held two weeks after he was removed from the TRP and the education supervisor served as the hearing officer. At the hearing, the hearing officer said movant would be denied privileges if he contested the ticket. The Offender Rehabilitation Coordinator, who wrote the misbehavior report, said movant would never go home unless he pled guilty. Movant did not plead guilty. He was found guilty by the hearing officer. Movant appealed, and on March 26, 2020, he was released without explanation, 11 days after his conditional release date of March 15, 2020.
The federal class action complaint, annexed to the proposed claim as Exhibit E, alleges that in 2018, DOCCS contracted with Microgenics to supply DOCCS with rapid drug screening tests. The complaint also alleges that after DOCCS determined the positive results generated by the Microgenics screening tests were unreliable, it reversed all guilty disciplinary dispositions for every positive result in 2019 and terminated its contract with Microgenics in January 2020. One of the news articles (Ex. F), published in Gothamist on November 21, 2019, reported on the punishment of thousands of incarcerated persons, including 300 at Fishkill, based on the faulty drug screening tests. Notably, the Superintendent's Hearing Disposition (Ex. B) notes only the written misbehavior report as evidence on which the disposition was based.
Analysis
Court of Claims Act § 10 (6) permits this Court 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, upon consideration of the following factors: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop Section IV v New York State Employees’ Retirement Sys. Policemen's & Firemen's Retirement Sys. , 55 NY2d 979 [1982] ; Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [3d Dept 2009] ; Edens v State of New York , 259 AD2d 729, 730 [2d Dept 1999] ).
For the purpose of deciding this motion, movant's unrefuted factual allegations are accepted as true. "Facts stated in a motion for leave to file a late claim ... are deemed true for purpose of [the] motion, when not denied or contradicted in opposing affidavits" ( Sessa v State of New York , 88 Misc 2d 454, 459 [Ct Cl 1976], affd 63 AD2d 334 [3d Dept 1978], affd 47 NY2d 976 [1979] ; see Schweickert v State of New York , 64 AD2d 1026, 1026 [4th Dept 1978] ; Cole v State of New York , 64 AD2d 1023, 1024 [4th Dept 1978] ).
The first issue for determination upon a late claim motion is whether the motion under Court of Claims Act § 10 (6) was filed before the expiration of the applicable statute of limitations. The statute of limitations for wrongful confinement and for negligence are, respectively, one year ( CPLR 215[3] ) and three years ( CPLR 214 ). The instant motion was filed on May 18, 2021. The claim for wrongful confinement accrued when movant was released from confinement on March 26, 2020, more than a year earlier (see Dawes v State of New York , 167 AD3d 1099, 1100 [3d Dept 2018] ; Conner v State of New York, 268 AD2d 706, 707 [3d Dept 2000] [claim accrued on release from parole]).
However, movant correctly argues that executive orders by then New York State Governor Cuomo tolled statutes of limitation from March 20 through November 3, 2020. "The period of the toll is excluded from the calculation of the time in which the [claimant] can commence an action" ( Chavez v Occidental Chem. Corp. , 35 NY3d 492, 505, n 8 [2020] ; see Foy v State of New York , UID No. 2021-028-505 [Ct Cl, Sise, PJ, Feb. 16, 2021]). The amount of time covered by the original executive order and all extensions is 242 days. The number of days between when the claim accrued, March 26, 2020, and when movant filed the late claim motion on May 18, 2021, is 418 days, 53 days more than a year. The period of the toll, 242 days, subtracted from the period of time between accrual and filing, 418 days, is 176 days. Therefore, on March 26, 2020, 189 days remained before the expiration of the statute of limitations. As such, the instant late claim motion was timely filed before the expiration of the statute of limitations.
The initial Executive Order 202.8 was extended seven times.
Turning to the first factor under Court of Claims Act 10 (6), movant's purported excuse for the delay is the onset and duration of the Covid 19 pandemic. The Court notes that assertions by movant's attorney in his affirmation indicate that law office failure was also a factor in the delay. Movant had an intake appointment with counsel's law firm on March 30, 2020, four days after his release, and a retainer agreement was signed on September 2, 2020, "[a]fter investigation and review of the available facts and evidence" (Brewington Affirmation ¶¶ 5, 6). Because the Executive Orders tolled the time period for filing and serving a claim, the deadline under the Court of Claims Act was extended to 90 days from the toll's expiration on November 3, 2020, which is February 1, 2021. While the Court is mindful of the difficulties presented by the pandemic, the Court notes that attorneys and pro se litigants have continued to timely commence claims. Additionally, law office failure is not a reasonable excuse (see Casey v State of New York, 161 AD3d 720, 721 [2d Dept 2018] ). Thus, the Court finds that movant has not demonstrated a reasonable excuse for the delay; however, this is but one factor to be considered and it is not a determinative factor (see Matter of St. Paul Guardian Ins. Corp. v Pocatello Fire Dist. , 90 AD3d 761 [2d Dept 2011] ).
Next, the Court considers the factors of whether the State had notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the proposed claim, and whether the State has suffered substantial prejudice from movant's delay. The State does not assert in the opposition that it lacked notice and an opportunity to investigate, or that it suffered substantial prejudice. Moreover, a contrary position would not be supported by the record. Movant attests in his affidavit that the disciplinary hearing officer and the author of the misbehavior report, both DOCCS employees, were directly involved in violating his due process rights by pressuring him to plead guilty or he would be punished (Taylor Affidavit ¶ 23). The State has not submitted an affidavit refuting movant's allegations of fact, which are deemed true by the Court on a late claim motion (see Sessa , 88 Misc 2d at 459 ). Thus, based on the unrefuted allegations of fact, the Court finds that movant has met the initial burden of showing that the State has not been substantially prejudiced by the delayed claim because the State had actual notice and an adequate opportunity to conduct an investigation into the incident. The State has not refuted such showing (see Matter of Newcomb v Middle Country Cent. Sch. Dist. , 28 NY3d 455, 456 [2016] ; Wolf v State of New York , 140 AD2d 692, 693 [2d Dept 1988] ).
The next factor to be considered is whether the proposed claim has an appearance of merit. Whether the proposed claim has the appearance of merit is generally the most decisive factor inasmuch as " ‘it would be futile to permit a defective claim to be filed even if the other factors ... supported the granting of the claimant's motion’ " ( Ortiz v State of New York , 78 AD3d 1314, 1314 [3d Dept 2010], 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] ). In order to establish the appearance of a meritorious cause of action, movant must establish that his claim is not "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" ( Rizzo v State of New York , 2 Misc 3d 829, 834 [Ct Cl 2003] ; see Matter of Santana v New York State Thruway Auth. , 92 Misc 2d 1, 11 [Ct Cl 1977] ; Williams v State of New York , UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]).
Unlike a party who has timely filed a claim, a party seeking to file a late claim has the greater burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York , 154 Misc 2d 199 [Ct Cl 1992] ; Matter of Santana , 92 Misc 2d at 11 ). It is noted that a heavier burden than a mere showing of an appearance of merit rests upon movant to prevail on the allegations at trial.
The proposed claim sounds in wrongful confinement. In order to plead a cause of action for wrongful confinement, a claim must allege that the claimant was intentionally confined, that the claimant was aware of and did not consent to the confinement, and that the confinement was not privileged (see Martinez v City of Schenectady , 97 NY2d 78, 85 [2001] ; Broughton v State of New York, 37 NY2d 451, 456-457 [1975], cert denied sub nom. Schanbarger v Kellogg , 423 US 929 [1975] ; Nazario v State of New York , 75 AD3d 715, 718 [3d Dept 2010], lv denied 15 NY3d 712 [2010] ). Confinement is privileged, unless DOCCS "employees exceed the scope of their authority or violate the governing statutes and regulations [relating to the prison disciplinary process]" ( Holloway v State of New York , 285 AD2d 765, 765 [3d Dept 2001] ; see Arteaga v State of New York , 72 NY2d 212, 221 [1988] ), in violation of an incarcerated person's right to due process (see Arteaga , 72 NY2d at 221 ; Davis v State of New York , UID No. 2021-038-550 [Ct Cl, DeBow, J., Aug. 23, 2021]).
An incarcerated person charged with violating a prison regulation is entitled to minimal due process protections (see Matter of Henry v Fischer , 28 NY3d 1135, 1138 [2016] ), including "a hearing affording him a reasonable opportunity to call witnesses and present documentary evidence; a fair and impartial hearing officer; and a written statement of the disposition, including the evidence relied upon and the reasons for the disciplinary actions taken" ( Sira v Morton , 380 F3d 57, 69 [2d Cir 2004] ; see Williams v Korines , 966 F3d 133, 143 [2d Cir 2020] ).
Movant argues that his due process rights were violated when his urine was tested using a Microgenics rapid screening test that DOCCS knew or should have known was unreliable. The State asserts that movant failed to submit proof that the test was in fact produced by Microgenics. However, the State makes this assertion in an attorney's affirmation instead of an affidavit, which is not sufficient (see Zuckerman v City of New York , 49 NY2d 557, 563 [1980] [attorney's affirmation insufficient for summary judgment motion]; Lee v State of New York, 51 Misc 3d 201, 204 [Ct Cl 2015] [attorney's affidavit insufficient for late claim motion]). As such, movant's allegations are deemed true for purposes of the motion.
The State does not dispute that before the hearing, movant was removed from the TRP, which allowed him to spend four nights a week at home. He was then fully incarcerated, moved into a general population dormitory from residential housing, and his privileges were suspended. The multi-step procedures for removing an incarcerated person from the TRP, requiring reviews by the temporary release committee and the facility superintendent, are spelled out in 7 NYCRR § 1904.2. Section 1904.2 (f) provides, in pertinent part, that "[o]nly the temporary release committee can remove an [incarcerated person] from the program," and subsection (g) precludes the committee from using a misbehavior report as the basis for recommending removal (which is what was done by the hearing officer [Ex. B]). Based on the uncontroverted facts in the record, it does not appear that any of these procedures were followed.
The record also supports movant's allegations of bias in the disciplinary proceedings. 7 NYCRR 253.1, 254.1 requires an impartial hearing officer to preside at disciplinary hearings (see Giano v Sullivan , 709 FSupp 1209, 1217 [SDNY 1989] [impartial hearing and hearing officer required]; McCann v Coughlin , 698 F2d 112, 122 [2d Cir 1983] [members of prison disciplinary Adjustment Committee must be fair and impartial]). The impartiality of a hearing officer has been recognized as a due process requirement (see Powell v Ward , 542 F2d 101, 102-03 [2d Cir 1976] ). The State does not contest movant's allegations that the hearing officer and the author of the misbehavior report threatened movant with punishment if he contested the charges against him. It appears from these unrefuted facts that clear bias infected the disciplinary process and that both men exceeded their authority. Based on these unrefuted facts, the proposed claim has an appearance of merit.
It is not necessary for the Court to decide whether the State's additional actions and regulatory violations alleged in the proposed claim violate due process, since the Court has determined that the proposed claim has an appearance of merit based on movant's removal from the TRP and the lack of an impartial hearing. With regard to the factor of whether movant may have another available remedy, it does not appear that movant has another available remedy. Upon consideration of all the factors, the Court will exercise its discretion to find in favor of granting movant's late claim application.
Accordingly, movant's application for permission to serve and file a late claim and to withdraw the cause of action for violation of 42 USC § 1983 from the proposed claim is GRANTED. Therefore, within forty-five (45) days of the filing date of this Decision and Order, movant shall file with the office of the Clerk of the Court his proposed claim, revised accordingly, against the State of New York and serve a copy of the proposed claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing his claim, he is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.