Opinion
# 2011-041-034 Motion No. M-78437
10-17-2011
TUSA v. THE STATE OF NEW YORK
Synopsis
Application to file late claim alleging that defendant unlawfully confined claimant by adding term of post release supervision to claimant's criminal sentence is denied where proposed claim lacks appearance of merit. Case information
UID: 2011-041-034 Claimant(s): JOSEPH TUSA Claimant short name: TUSA 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-78437 Cross-motion number(s): Judge: FRANK P. MILANO Claimant's attorney: THOMAS J. LAVALLEE, ESQ. 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: October 17, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant moves for permission to file a late claim pursuant to Court of Claims Act § 10 (6). Defendant opposes the motion.
The proposed claim alleges that defendant administratively, and unlawfully, added a three-year period of postrelease supervision to claimant's criminal sentence resulting in claimant being imprisoned for violating the terms of the administratively imposed postrelease supervision. The proposed claim sounds in wrongful confinement.
Court of Claims Act § 10 (6) provides that:
"[T]he court shall consider, among other 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."
Recognizing that "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" (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]), the application to file a late claim is denied.
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], affd Donald v State of New York, 17 NY3d 389 [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 proposed claim fails to state a cause of action for wrongful confinement and thus lacks the appearance of merit.
Claimant's motion for permission to file a late claim is denied.
October 17, 2011
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion, filed June 22, 2010;
2. Affirmation of Thomas J. LaVallee, dated June 21, 2010, and annexed exhibits;
3. Affirmation of Michael T. Krenrich, dated July 8, 2010;
4. Reply Affirmation of Thomas J. LaVallee, dated July 13, 2010