Opinion
# 2018-038-510 Claim No. 126533 Motion No. M-90534 Cross-Motion No. CM-90806
01-10-2018
JOSEPH VIDAL v. THE STATE OF NEW YORK
JOSEPH VIDAL, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: J. Gardner Ryan, Assistant Attorney General
Synopsis
Claimant's motion to compel responses to improper interrogatories denied. Cross motion to dismiss the claim for lack of service of the notice of intention denied. Claimant submitted proof in admissible form that Notice of Intention was timely and properly served by CMRRR. Defendant's contentions were not based on personal knowledge or otherwise sufficient to defeat claimant's prima facie demonstration of service.
Case information
| UID: | 2018-038-510 |
| Claimant(s): | JOSEPH VIDAL |
| Claimant short name: | VIDAL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126533 |
| Motion number(s): | M-90534 |
| Cross-motion number(s): | CM-90806 |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | JOSEPH VIDAL, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: J. Gardner Ryan, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 10, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, has filed this claim that asserts four causes of action, two of which seek damages for wrongful confinement in keeplock at Green Haven Correctional Facility (CF) from October 20, 2014 through November 28, 2014, among other things. Claimant moves for an order compelling discovery (M-90534). Defendant opposes the motion to compel and cross-moves to dismiss the wrongful confinement causes of action on the grounds that the Court lacks jurisdiction and that it fails to state a cause of action (CM-90806). Claimant opposes the cross motion.
Defendant's cross motion to dismiss will be addressed first as it may be dispositive as to the wrongful confinement causes of action. First, defendant asserts that the wrongful confinement causes of action must be dismissed as jurisdictionally defective due to untimely service. Court of Claims Act §§ 10 (3-b) and 11 (a) (i) require, inter alia, that a notice of intention to file a claim or the claim itself be served upon the Attorney General within 90 days after accrual of the claim. A timely served notice of intention will extend the time within which to serve and file the claim to one year after the date of accrual of a claim asserting intentional torts (see Court of Claims Act § 10 [3-b]). It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional in nature, and that the failure to timely serve the claim upon the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]).
Here, the wrongful confinement causes of action accrued on November 28, 2014 when claimant was allegedly released from confinement (see Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]; Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 [2005]), and the causes of action would be timely if a notice of intention or the claim had been served on or before February 26, 2015. The claim that was filed with the Court states that a timely notice of intention was served on the Attorney General on or about February 5, 2015 and references an appendix to the claim, which contains a notice of intention to file claim asserting a claim for wrongful confinement between October 20, 2014 and November 28, 2014 at Green Haven CF that was verified January 29, 2015, and a receipt for certified mail, indicating that the Office of the Attorney General received certified mail number 7008 0500 0001 7382 5420 on February 5, 2016 (see Claim number 126533, ¶ 12, Appendix). The Assistant Attorney General defending the claim asserts that "no notice of intention to file a claim is appended to the claim [served on it], none is found in the [Attorney General's] file, and an electronic search of the documents received from claimant fails to find any record of its receipt" (Ryan Affidavit, first ¶ 3). In an affidavit in reply to defendant's cross motion, claimant references and appends the same notice of intention to file a claim and certified mail receipt that were appended to the claim, along with a disbursement request and the receipt card from the certified mail number 7008 0500 0001 7382 5420.
Defendant's motion to dismiss for untimely service will be denied due to insufficient proof that defendant was not served with the notice of intention. Although the AAG states that no notice of intention was in the Attorney General's file and a search of their database did not reveal any notice of intention, there is no indicia that he made those statements upon personal knowledge. Further, the AAG's conclusory statements fail to explain the steps taken or processes employed in reaching the conclusion that the notice of intention was not served. Claimant made a prima facie showing in the claim and reiterated in his reply submission that a notice of intention was timely served upon the Attorney General's office. Defendant has not sufficiently supported its contention that the notice of intention was not served, and claimant has demonstrated that the notice of intention was timely served. The claim was served on the Attorney General on July 30, 2015, which was within one year of the November 28, 2014 accrual date. Thus, the wrongful confinement causes of action are timely, and defendant's cross motion to dismiss them will be denied.
Defendant also asserts that the claim fails to state a viable cause of action for wrongful confinement. The claim alleges that claimant was wrongfully confined after a determination of guilt following a disciplinary hearing on an inmate misbehavior report (IMR) that violated Department of Corrections and Community Supervision (DOCCS) regulations requiring a written specification of the particulars of the alleged incident of misbehavior involved (see Claim number 126533, ¶¶ 4-10). Defendant argues that the claim fails to state a cause of action because it does not assert that the hearing determination was reversed or vacated and merely asserts that the confinement was unauthorized due to a defective IMR, and that defendant has absolute immunity from liability for discretionary and quasi-judicial determinations.
On a motion to dismiss for failure to state a cause of action:
"claimant's claim is liberally construed and all facts asserted therein . . . are accepted as true (see CPLR 3026; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; see also Nonnon v City of New York, 9 NY3d 825, 827 [2007]; State of New York v Shaw Contract Flooring Servs., Inc., 49 AD3d 1078, 1079 [2008]). Where, as here, the motion is premised upon claimant's failure to state a claim (see CPLR 3211[a][7] ) . . . the dispositive inquiry is whether it has a cause of action and not whether one has been stated, i.e., "whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; accord Nonnon v City of New York, 9 NY3d at 827)."
(IMS Engrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [3d Dept 2008], lv denied 11 NY3d 706 [2008]). Here, the claim alleges that claimant was confined after the issuance of a defective IMR, that he was conscious of and did not consent to the confinement, and that the imposition of the confinement was not privileged because the IMR did not comply with DOCCS regulations, which clearly states a cause of action sounding in unlawful confinement (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]; see also Nazario v State of New York, 75 AD3d 715, 718 [3d Dept 2010], lv denied 15 NY3d 712 [2010]). Defendant's argument that the claim did not allege that the hearing determination was reversed and expunged is without merit as there is no requirement that he plead such allegations in a wrongful confinement claim, and defendant has not cited any authority, nor has the Court found any that suggests that such is required. Moreover, defendant's argument that the claim should be dismissed because defendant has not waived its absolute immunity in prison disciplinary matters is similarly unavailing, as claimant has clearly alleged a due process violation that would abrogate defendant's immunity under Arteaga v State of New York (72 NY2d 212, 221 [1988]). Thus, the claim states a cause of action sounding in wrongful confinement.
Turning next to claimant's motion to compel, on or about March 10, 2017, claimant served a demand for the production of documents and notices of interrogatories addressed to six correction officers (COs) at Green Haven CF (see Vidal Affidavit ¶ 4; Exhibits 2-3). On March 22, 2017, defendant responded to claimant's notices of interrogatories by objecting to them as improper and to the demand for documents by stating that a response would be under separate cover (see Ryan Affirmation, Exhibit 1). Claimant thereafter filed this motion to compel production of the documents and answers to the interrogatories. In response, defendant argues that the interrogatories are improper as being an attempt to conduct depositions on written questions, and responded to claimant's request for documents by stating that it has compiled the requested documents and has no objection to their production provided that claimant pays a copying fee (see Ryan Affirmation, ¶¶ 7, 8; Exhibit 3). In reply, claimant argues that the interrogatories were properly addressed to the COs, and confirms that he successfully requested and received the records from defendant. Accordingly, that branch of claimant's motion to compel production of documents has been rendered moot, and only that branch of the motion that seeks to compel answers to claimant's interrogatories remains for consideration.
The interrogatories specifically directed to the six COs, who are non-party employees of defendant, are improper (see Martinez v State of New York, 111 AD3d 1445, 1446 [4th Dept 2013], lv dismissed 23 NY3d 956 [2014]). Further, as the six notices of interrogatories directed to the COs seek information directly within the knowledge of those officers, they are tantamount to deposition on written questions and not interrogatories (see Rosa v State of New York, UID No. 2014-049-054 [Ct Cl, Weinstein, J., Oct. 14, 2014]; see also CPLR 3109). Thus, inasmuch as the interrogatories are improper, defendant will not be compelled to respond to them.
Accordingly, it is
ORDERED, that claimant's motion number M-90534 is DENIED; and it is further
ORDERED, that defendant's cross motion number CM-90806 is DENIED.
January 10, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 126533, filed July 31, 2015, with Appendix and Attachments 1-14; (2) Verified Answer, filed August 27, 2015; (3) Notice of Motion to Compel (M-90534), dated May 30, 2017; (4) Affidavit of Joseph Vidal in Support of Motion to Compel, sworn to May 30, 2017, with Exhibits 1-4; (5) Notice of Cross Motion to Dismiss (CM-90806), dated July 14, 2017; (6) Affirmation of J. Gardner Ryan, AAG, dated July 21, 2017, with Exhibits 1-3; (7) Reply Affidavit of Joseph Vidal, sworn to July 28, 2017.