Court of Claims, November 22, 2023

Jimmy Delgado, movant pro se.

Letitia James, Attorney General (Anthony Rotondi of counsel), for defendant.

Jimmy Delgado filed a motion for permission to file a late claim on July 7, 2023. The proposed claim alleges that while incarcerated at Sing Sing Correctional Facility he was wrongfully confined in "special housing" (SHU) for 180 days. The State opposes the motion arguing that Mr. Delgado has not established whether the delay in filing was excusable; that movant could commence a federal court action instead; and that the claim lacks merit. For the reasons set forth below, movant's motion for permission to file a late claim is granted.

Mr. Delgado's proposed claim alleges that he was wrongfully confined for 180^[FN1] days in the SHU. On June 21, 2022, movant was issued a misbehavior report and two hearings followed. At both hearings, Mr. Delgado alleges, the hearing officer failed to interview certain witnesses, found him guilty, and assessed him a penalty of 180 days in the SHU. On January 5, 2023, the [*2]Director of Special Housing reversed the second disciplinary determination and Mr. Delgado was ordered released from confinement (proposed claim at 1-2 ¶¶ 4-10). Movant seeks $18,000 in damages calculated at $100^[FN2] a day (proposed claim at 2 ¶ 11). Mr. Delgado maintains that he was unable to timely file the claim because he was "transferred from his last facility to the current one and was without his property." (Movant's mem of law at 6.)

Analysis

It is well settled that "[t]he decision whether to grant or deny an application to file a late claim lies within the broad discretion of the Court of Claims" (Calverley v State of New{**82 Misc 3d at 309}York, 187 AD3d 1426, 1427 [3d Dept 2020] [internal quotation marks and citations omitted]). In evaluating whether to exercise its broad discretion in granting an application for permission to file a late claim, the court accepts as true any unrefuted factual allegations asserted by movant. (Barton v State of New York, 74 Misc 3d 1234[A], 2022 NY Slip Op 50328[U] [Ct Cl 2022], quoting Sessa v State of New York, 88 Misc 2d 454, 458 [Ct Cl 1976] ["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"], affd 63 AD2d 334 [3d Dept 1978], affd 47 NY2d 976 [1979]; see also Schweickert v State of New York, 64 AD2d 1026, 1026 [4th Dept 1978].) Therefore, for the purpose of deciding this motion, movant's unrefuted factual allegations are accepted as true, i.e., the movant was assessed a penalty of 180 days in the SHU and confined to the SHU from June 21, 2022, through January 5, 2023, when he was ordered released from confinement.

The first issue the court must address on a late claim motion is whether it was filed before the expiration of the applicable statute of limitations. A wrongful confinement claim in the prison context can be considered a negligence claim with a three year statute of limitations or an intentional tort with a one year statute of limitations (Roye v State of New York, 2010 NY Slip Op 34127[U] [Ct Cl 2010], citing Ramirez v State of New York, 171 Misc 2d 677 [Ct Cl 1997]; Court of Claims Act § 10 [6] [claimant may be permitted to file a "claim at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules"]; CPLR 214, 215). A wrongful confinement cause of action accrues once an incarcerated individual is released from the alleged wrongful confinement (Trammell v State of New York, 172 AD3d 1847, 1848 [3d Dept 2019]). Mr. Delgado was ordered released on January 5, 2023, and his motion to file a late claim was filed on July 7, 2023. Therefore, regardless of whether this claim is characterized as a negligence claim or an intentional tort, Mr. Delgado's motion was timely.

Next the court must consider, in addition to other relevant factors, the six factors set forth in Court of Claims Act § 10 (6): (1) was the delay in filing excusable; (2) did the State have notice of the essential facts of the claim; (3) did the State have an opportunity to investigate; (4) does the claim appear to have{**82 Misc 3d at 310} merit; (5) did the failure to timely serve a claim or notice of intention result in substantial prejudice to the State; and (6) does the movant have another remedy available. The absence or presence of any one factor is not determinative and the list of factors is not exhaustive. (Tucholski v State of New York, 122 AD3d 612, 612 [2d Dept 2014].) [*3]Court of Claims Act § 10 (6) requires the movant to include a proposed claim that meets the requirements set forth in Court of Claims Act § 11 to enable this review and the claimant has done so here ("Propsed [sic] Claim").

Turning to the first factor, the State insists that Mr. Delgado has not established an excuse for his failure to timely file since "[i]gnorance of the law is not a valid excuse." (Affirmation of the State's counsel at 2 ¶ 4.) Although unfamiliarity with the law is one reason offered by movant for the delay, movant also cited his transfer from one correctional facility to another, leaving him without his property, as another. (Movant's mem of law at 6.) He also noted that he is an immigrant. (Id.) It has long been held that ignorance of the law, regardless of why, is not a valid excuse for a late claim (Swart v State of New York, 211 AD3d 881, 882 [2d Dept 2022]). Similarly, movant's assertion that the delay arose from being transferred is also insufficient since that does not necessarily account for why he had no access to his documents for the entire 90-day window after being released from the SHU. Nevertheless, the lack of a reasonable excuse for delay in filing a claim does not prohibit this court from exercising its discretion and granting the relief when balancing the remaining statutory factors. (See Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982] ["the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief. Subdivision 6 of section 10 of the Court of Claims Act permits late filing in the exercise of the court's discretion after considering certain enumerated factors, expressly stated to be 'among other factors' "].)

Regarding the second, third, and fifth statutory factors, movant contends that the State had timely knowledge of the essential facts because State employees were participants in the proceedings, which included two hearings, two appeals, and the assessed penalty of and movant's confinement for 180 days in the SHU; that the State has not been prejudiced since it{**82 Misc 3d at 311} reviewed the proceedings and penalty at each step; and that the State has had the opportunity to investigate. (Mem of law at 6-7.) The State does not dispute that it had notice and it is similarly silent on whether it had an opportunity to investigate or would be substantially prejudiced by movant's failure to timely file a claim. Therefore, the court is sufficiently persuaded that these factors weigh in favor of granting movant's late application. (See Schnier v New York State Thruway Auth., 205 AD3d 958, 960 [2d Dept 2022].)

The parties take opposing positions as to whether movant has an alternative remedy to pursue relief for being wrongfully confined. Movant contends that he has "no other state remedy" while the State maintains that he could commence a federal action for denial of due process. Both are true; however given the potential availability of a federal action, this factor does not weigh in movant's favor.

The court agrees with both movant and the State that merit is the most important factor in determining whether to grant or deny a motion for permission to file a late claim. Merit should be weighed most heavily since it would be futile to permit the filing of a deficient claim. (Savino v State of New York, 199 AD2d 254, 254-255 [2d Dept 1993].) This factor is evaluated using the two-prong test set forth in Matter of Santana v New York State Thruway Auth. (92 Misc 2d 1, 11 [Ct Cl 1977]). Movant's proposed claim "must not be patently groundless, frivolous, or legally defective," and his record, including the proposed claim and any affidavits or exhibits, must give[*4]"reasonable cause to believe that a valid cause of action exists." (Id. at 11.)

"While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require [movant] to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit [movant] to file a late claim." (Williams v State of New York, 2016 NY Slip Op 33159[U], *3 [Ct Cl 2016]; see Matter of Santana, 92 Misc 2d at 11-12.)

The State's opposition to the motion seems to interpret the proposed claim to be limited to movant "merely alleg[ing] that the hearing was reversed and that the reversal was due to the failure of the hearing officer to independently evaluate the credibility and reliability of a confidential informant." (Affirmation{**82 Misc 3d at 312} of counsel for the State at 2 ¶ 6.) The State argues that, in the context of the prison disciplinary process, when employees comply with statutes and regulations, their actions are privileged and "constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity" from liability. (Id. ¶¶ 7-8 [internal quotation marks omitted].)

Another way to interpret the proposed claim is that, in addition to the hearing officer failing to independently evaluate the credibility and reliability of a confidential informant, movant is alleging he was assessed a penalty of 180 days in the SHU and was wrongfully confined in the SHU for 180 days (propsed [sic] claim at 2 ¶ 11). Indeed, that is the crux of the proposed claim and the harm for which he seeks damages, a fact the State avoids mentioning. The court believes that this is the more accurate and appropriate interpretation of the proposed claim.

Court of Claims Act § 11 (b) requires, in part, that a claimant set forth the time when and place where the claim arose and "the nature of same." The act does not require citation to a specific statute but only the nature of the claim. To state a cause of action for wrongful confinement, movant must allege that "(1) the defendant intended to confine him, (2) the [movant] was conscious of the confinement, (3) the [movant] did not consent to the confinement and (4) the confinement was not otherwise privileged." (Ruggiero v State of New York, 2010 NY Slip Op 34128[U], *2 [Ct Cl 2010] [internal quotation marks and citations omitted].) Here, movant, as with most movants alleging wrongful confinement in a prison setting, has met the first three prongs of the test; however, "it is the last factor, the issue of privilege, which poses the most difficulty." (Id.)

As argued by the State, absolute immunity attaches to the State when confinement was imposed after a disciplinary hearing so long as the underlying proceeding complied with the applicable governing rules and regulations (Arteaga v State of New York, 72 NY2d 212, 218-220 [1988]; see also Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986] [in the context of a prison involuntary confinement proceeding, such confinement will be privileged to the extent that it was under color of law or regularly, specifically in accordance with regulations]). However, this immunity is lost where prison personnel exceeded their scope of authority or violated applicable rules or laws. (Id.)

In the proposed claim, movant alleges he was assessed a penalty of and confined for more than 180 days in the SHU.{**82 Misc 3d at 313} The Humane Alternatives to Long-Term Solitary Confinement Act (HALT Act) was enacted by the New York State Legislature in 2021 and went into effect April 1, 2022. As set forth in Correction Law § 137, the HALT Act imposes specific limits and [*5]regulations regarding the placement of incarcerated individuals in segregated and other specific forms of disciplinary confinement. The HALT Act defines segregated confinement as a type of confinement in which the incarcerated individual is offered less than seven hours out-of-cell programming or other out-of-cell activities daily. The HALT Act limits segregated confinement to not more than 15 consecutive days or 20 total days in any 60-day period. The proposed claim on its face alleges that the State wrongfully assessed a penalty of and confined movant to the SHU for more than 180 days. Confinement to the SHU for more than 180 days is well beyond what the law permits. (Correction Law § 137 [6] [para i] [subpara i] ["No person may be placed in segregated confinement for longer than necessary and no more than fifteen consecutive days" (emphasis added)].) Had the State followed the law, movant would not have been confined for that length of time. Since the State does not refute that movant was assessed a penalty of and confined to the SHU for 180 days, and the court accepts these facts as true, the court finds that immunity does not attach for the purposes of evaluating the merits of the claim. Therefore, the court finds that the proposed claim appears meritorious on its face and this factor weighs in movant's favor.

Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10 (6), the court finds that the balancing of the factors weighs in favor of granting movant's application.

Accordingly, it is ordered that movant's motion for permission to file a late wrongful confinement claim (M-99659) is granted. Within 60 days of the filing of this decision and order, movant is directed to (1) serve his proposed claim upon the Attorney General personally or by certified mail, return receipt requested, and (2) file it with the Chief Clerk of the Court of Claims, in accordance with the Court of Claims Act.