Court of Claims, April 11, 2024

Amin Booker, claimant pro se.

Letitia James, Attorney General (Michael T. Krenrich of counsel), for defendant.

Claimant Amin Booker, an incarcerated individual in the custody of the Department of Corrections and Community Supervision (DOCCS), brings this claim sounding in wrongful{**84 Misc 3d at 591} confinement, asserting several distinct theories of liability. In addition to claims that claimant's due process rights were violated during the prison disciplinary process, the claim also alleges that claimant was confined in the Special Housing Unit for 60 days, well beyond the time frame for segregated confinement permitted under the recently enacted Humane Alternatives to Long-Term Solitary Confinement Act (HALT Act).

Claimant initially served the claim upon the Attorney General by regular mail. Apparently realizing his error, claimant later sought to serve the claim again, this time by certified mail, return receipt requested. In this motion, claimant requests that the court, in effect, excuse the improper initial service of the claim by regular mail and deem the "reservice of [the] claim" timely "nunc pro tunc" (notice of mot at 1). Alternatively, claimant moves for permission to file a late claim based upon the same allegations. Defendant opposes the motion. For the reasons explained below, the motion is granted to the extent it seeks late claim relief with respect to the alleged violations of the HALT Act.

As to the first portion of claimant's motion, the requirements of Court of Claims Act § 11, including the service and filing requirements of section 11 (a), are substantive [*2]conditions on the State's waiver of sovereign immunity and, as such, a claimant's failure to comply with them deprives the court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; see also Lepkowski v State of New York, 1 NY3d 201, 209 [2003]). One of these requirements is that a copy of the claim be timely served on the Attorney General either personally or by certified mail, return receipt requested; service by regular mail will not suffice (see Court of Claims Act § 11 [a] [i]; Encarnacion v State of New York, 133 AD3d 1049, 1050 [3d Dept 2015]). Because the manner of service implicates the court's jurisdiction, a defect in service of the claim cannot be disregarded or corrected nunc pro tunc (see Chaudry v State of New York, 167 AD3d 704, 704 [2d Dept 2018]; Zoeckler v State of New York, 109 AD3d 1133, 1134 [4th Dept 2013]). Thus, to the extent claimant asks the court to deem the "reservice" of the claim by certified mail, return receipt requested, as having been accomplished on the date that the claim was initially served by regular mail, nunc pro tunc, that branch of claimant's motion is denied.

Turning to claimant's alternative request for permission to file a late claim, defendant notes that the late claim application{**84 Misc 3d at 592} is based upon allegations identical to those presented in the already-filed claim, which remains pending. Thus, defendant opposes late claim relief principally on the ground that such relief is unnecessary. Defendant's contentions in this regard are rejected because, on this record, it is not clear whether claimant timely served the underlying claim (see Court of Claims Act § 10 [6] [noting that late claim relief is available where the claimant "fails to file or serve upon the attorney general a claim or to serve upon the attorney general a notice of intention . . . within the time limited therein for filing or serving upon the attorney general the claim or notice of intention"]). As explained above, claimant's service of the claim by regular mail on April 3, 2023 (see claimant's aff ¶ 3) did not comply with the manner of service requirements of Court of Claims Act § 11 (a) (i), and defendant has not waived its defenses and objections to such service because it raises improper service of the claim as a defense in its answer (see answer ¶ 9; Court of Claims Act § 11 [c]). Even though claimant eventually served the claim by certified mail, return receipt requested (see claimant's aff ¶ 7), such service—in the absence of a timely served and proper notice of intention to file a claim—would be untimely inasmuch as it was accomplished more than 90 days after the claim accrued (see Court of Claims Act § 10 [3-b]; Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011] [noting that a claim for wrongful confinement accrues on date of the claimant's release from confinement]). Although claimant purports to have timely served a notice of intention to file a claim on February 5, 2023 (see claimant's aff ¶ 8), defendant's answer raises as its first affirmative defense that the notice of intention did not extend claimant's time to serve the claim because it failed sufficiently to particularize the nature of the claim (see Court of Claims Act § 11 [b]). Thus, jurisdiction over the claim turns on the contested propriety of the notice of intention and, because this notice has not been provided to the court, jurisdiction remains uncertain.

Notably, defendant's affirmation in opposition to this motion studiously avoids making any concessions about the substance of the notice of intention or the court's jurisdiction over the underlying claim more broadly; it merely states that the claim is "active" and "pending" (Krenrich affirmation ¶ 11). Should the motion be denied, nothing would preclude defendant from subsequently moving to dismiss the claim based on the [*3]asserted insufficiency of the notice of intention. And because the{**84 Misc 3d at 593} underlying statute of limitations for a wrongful confinement claim has now expired (see CPLR 215 [3]), claimant will have lost the opportunity for a second attempt at late claim relief in the event this motion is denied and the underlying claim is later dismissed upon a subsequent defense motion for lack of jurisdiction (see Court of Claims Act § 10 [6]). To avoid this injustice, the court will consider the merits of so much of the motion as seeks late claim relief.

Initially, as defendant does not dispute, the motion for late claim relief appears timely. A claim for wrongful confinement accrues on the date of an individual's release from confinement (see e.g. Davis, 89 AD3d at 1287), alleged here to be January 19, 2023. Claimant brought this application on August 18, 2023, well within the underlying one-year statute of limitations for a wrongful confinement claim predicated on intentional conduct (see CPLR 215 [3]; Matter of Kairis v State of New York, 113 AD3d 942, 942 [3d Dept 2014]).

Court of Claims Act § 10 (6) enumerates six factors to be weighed by the court in connection with a late claim motion: (1) whether the delay 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 delay resulted in substantial prejudice to the State; and (6) whether the moving party has another available remedy. This list is not exhaustive and the presence or absence of any one factor is not dispositive; rather, the court in its discretion balances these factors in making its determination (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]).

As defendant correctly argues, claimant failed to provide a reasonable excuse for the delay. Claimant suggests that the claim was initially served improperly by regular mail—and proper service was thus delayed—because of instructions given by a law library clerk at the facility where claimant was incarcerated (see claimant's aff ¶ 3). However, neither ignorance of the law nor the circumstances of claimant's confinement to a correctional facility constitute reasonable excuses for delay (see Innis v State of New York, 92 AD2d 606, 606 [2d Dept 1983], affd 60 NY2d 654 [1983]; Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]).

Of course, the unreasonableness of the delay does not necessarily preclude late claim relief (seeBay Terrace, 55 NY2d at{**84 Misc 3d at 594}  981). The related factors of defendant's notice of the essential facts, opportunity to investigate, and whether defendant was prejudiced by the delay all weigh in claimant's favor. Claimant asserts (claimant's aff ¶ 8) that defendant will not be prejudiced because the proposed late claim is identical to the claim originally served upon defendant, albeit improperly. Defendant has not asserted otherwise and, thus, the facts as alleged by claimant are taken as true and these three factors weigh in claimant's favor (see Sessa v State of New York, 88 Misc 2d 454, 458 [Ct Cl 1976], affd 63 AD2d 334 [3d Dept 1978], affd 47 NY2d 976 [1979]; see also Cole v State of New York, 64 AD2d 1023, 1024 [4th Dept 1978]). Indeed, defendant concedes (see Krenrich affirmation ¶ 11) that it received the claim before the limitations period expired, even though it had not been properly served for purposes of Court of Claims Act § 11 (a).

The most important factor to consider is the potential merit of the claim because[*4]" 'it would be futile to permit the filing of a legally deficient claim which would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request' " (Calverley v State of New York, 187 AD3d 1426, 1427 [3d Dept 2020], quoting Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; see also Swart v State of New York, 211 AD3d 881, 883 [2d Dept 2022]). A claim has the appearance of merit if it is "not . . . patently groundless, frivolous or legally defective, and the record as a whole . . . give[s] reasonable cause to believe that a valid cause of action exists" (Calverley, 187 AD3d at 1427 [internal quotation marks omitted]; see also Swart, 211 AD3d at 883; Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]). Conclusory allegations are insufficient to establish the appearance of merit (see Langner v State of New York, 65 AD3d 780, 783-784 [3d Dept 2009]; Witko v State of New York, 212 AD2d 889, 891 [3d Dept 1995]).

In order to recover on a cause of action for wrongful confinement, claimant must show that (1) defendant intended to confine claimant in a disciplinary housing unit; (2) claimant was conscious of the confinement; (3) claimant did not consent to the confinement; and (4) the confinement was not privileged (see De Lourdes Torres v Jones, 26 NY3d 742, 759 [2016]; Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]; see also Miller v State of New York, 124 AD3d 997, 998 [3d Dept 2015]). In the prison context, the actions of corrections employees{**84 Misc 3d at 595} in commencing and conducting formal disciplinary proceedings—including issuing misbehavior reports, conducting hearings, rendering dispositions, and placing incarcerated persons in punitive confinement—"constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity" where such employees "act under the authority of and in full compliance with the governing statutes and regulations" (Arteaga v State of New York, 72 NY2d 212, 214 [1988]; see also id. at 219; Ramirez v State of New York, 175 AD3d 1635, 1636 [3d Dept 2019], lv denied 35 NY3d 902 [2020]). Significantly, not all rule violations will overcome the immunity typically afforded to the State in conducting disciplinary proceedings. Rather, the veil of absolute immunity may only be pierced where there has been a violation of the constitutionally required minimal "due process safeguard[s]" to which incarcerated individuals are entitled, such as written notice of the charges or the right to a timely hearing (Arteaga, 72 NY2d at 221, citing 7 NYCRR 251-5.1, and 7 NYCRR parts 252-254; see also Matter of Texeira v Fischer, 26 NY3d 230, 233-234 [2015], citing Wolff v McDonnell, 418 US 539, 556-558, 566 [1974]; Bottom v State of New York, 142 AD3d 1314, 1315 [4th Dept 2016], appeal dismissed 28 NY3d 1177 [2017], citing Texeira). But even if absolute immunity is lost, recovery is not certain; the State is then only potentially liable. A claimant must still demonstrate that, but for the alleged due process violation, "the outcome of the hearing would have been different" (Encarnacion v State of New York, 203 AD3d 1416, 1418 [3d Dept 2022], citing Bottom, 142 AD3d at 1316).

Claimant makes no specific argument in his affidavit with respect to the merits of the claim; thus, the court looks to the proposed claim and its attachments to ascertain whether the claim satisfies the appearance of merit factor (see Fernandez v State of New York, 43 Misc 3d 1221[A], 2014 NY Slip Op 50741[U] [Ct Cl 2014]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). The verified proposed claim alleges that [*5]numerous violations of claimant's rights occurred in connection with the disciplinary hearing which led to claimant's confinement. However, these alleged violations do not appear to be of the kind that pierce the veil of absolute immunity under Arteaga. For example, claimant fails to show how the misbehavior report, attached as exhibit 1 to the claim, did not provide adequate notice of the charges against him. To the extent the claim alleges that claimant was{**84 Misc 3d at 596} denied the assistance of his attorneys before, during, and after the hearing, such denial does not implicate his constitutional rights in the context of a prison disciplinary proceeding (see Matter of Laureano v Kuhlmann, 75 NY2d 141, 146 [1990], citing Wolff v McDonnell, 418 US 539, 563-570 [1974]). Likewise, any denial of the opportunity to confront the correction officer who authored the misbehavior report, or to review the evidence against claimant upon which disciplinary authorities relied, implicated only a regulatory right to confrontation and cross-examination, and not a constitutional due process right (see Laureano, 75 NY2d at 146; Matter of Proctor v Annucci, 205 AD3d 1253, 1255 [3d Dept 2022]; Matter of Hillard v Coughlin, 187 AD2d 136, 140 [3d Dept 1993]). Claimant also alleges that he was denied an opportunity to present exculpatory video footage of the underlying incident; however, it appears that such denial would not have affected the outcome of the hearing because, according to a letter from the attorney who represented claimant at the disciplinary hearing, DOCCS relied upon that video footage in reaching its disposition in any event (see claim, exhibit 5).

Finally, claimant notes that it was his attorney's "understanding" that the hearing disposition was administratively reversed for the reasons set forth in the claim (claim ¶ 26; see id., exhibit 5). However, claimant's administrative appeal decision does not actually state the reasons for reversal, and the administrative reversal of a prison disciplinary determination, in and of itself, is insufficient to overcome the State's absolute immunity (see Arteaga, 72 NY2d at 214-215; Davis v State of New York, 262 AD2d 887 [3d Dept 1999]; see also Loret v State of New York, 106 AD3d 1159, 1159-1160 [3d Dept 2013], lv denied 22 NY3d 852 [2013]).

The claim nevertheless has the appearance of merit to the extent that it alleges defendant exceeded the scope of its authority by imposing a period of segregated confinement longer than what is permissible under the HALT Act (see L 2021, ch 93). The HALT Act, which became effective March 31, 2022, defines "segregated confinement" as "the confinement of an incarcerated individual in any form of cell confinement for more than [17] hours a day" (Correction Law § 2 [23], as amended by L 2021, ch 93, § 1). The statute provides that DOCCS may not hold a person in segregated confinement for longer than three consecutive days, or longer than six days in any 30-day period (see Correction Law § 137 [6] [k] [i]), unless {**84 Misc 3d at 597}the person has committed one of seven offenses enumerated under section 137 (6) (k) (ii) (A)-(G), and DOCCS makes an individualized finding, "based on specific objective criteria," that "the acts were so heinous or destructive that placement of the individual in general population housing creates a significant risk of imminent serious physical injury to staff or other incarcerated persons, and creates an unreasonable risk to the security of the facility" (id. § 137 [6] [k] [ii]).^[FN2] Even where such findings are made, individuals may not be held in segregated confinement for longer than 15 consecutive days, or more than 20 days in a 60-day period (see id. § 137 [6] [i] [i]). Beyond those limits, DOCCS must release individuals from segregated confinement or transfer them to a "residential rehabilitation unit" (id.). The statute also restricts DOCCS' authority to place individuals in segregated confinement while a disciplinary hearing is pending: "[a]ll hearings to determine if a person may be placed in segregated confinement shall occur prior to placement in segregated confinement unless a security supervisor, with written approval of a facility superintendent or designee, reasonably believes the person fits the specified criteria for segregated confinement" set forth in Correction Law § 137 (6) (k) (ii) (id. § 137 [6] [l] [emphasis added]).

Here, the claim alleges that defendant imposed a sanction of 60 days in the Special Housing Unit upon claimant, that claimant was actually confined for at least that long,^[FN3] and that claimant was confined for 22 hours per day during the period of confinement. Further, the claim asserts that defendant failed to transfer claimant to a residential rehabilitation unit after 15 consecutive days of segregated confinement. Thus, the penalty imposed appears, on its face, to be impermissible under the HALT Act, even if DOCCS made the requisite written findings to authorize a comparatively longer period of confinement (see{**84 Misc 3d at 598} id. § 137 [6] [i] [i]; [k] [ii]). Moreover, the claim asserts that claimant was unlawfully confined in segregated housing before a disposition was issued in the disciplinary hearing. In that regard, the misbehavior report charged claimant with, among other offenses, "Threats," "Violent Conduct," "Demonstration," and "Creating a Disturbance," and accused claimant of "aggressively advancing" toward correctional facility staff during a mass demonstration (claim, exhibit 1); but, the claim alleges that DOCCS failed to make a finding that claimant committed an offense enumerated under Correction Law § 137 (6) (k) (ii). Thus, the claim plausibly asserts that DOCCS failed to satisfy the requirements for imposing prehearing confinement (see Correction Law § 137 [6] [l]). Significantly, defendant has not disputed any of the factual allegations in the claim and, thus, claimant's allegations are accepted as true for purposes of deciding the motion (see Sessa, 88 Misc 2d at 458; see also Schweickert v State of New York, 64 AD2d 1026, 1026 [4th Dept 1978]). The claim therefore has an appearance of merit to the extent claimant alleges he was held in [*6]segregated confinement for a period longer than that authorized by law (see Delgado v State of New York, 82 Misc 3d 307 [Ct Cl 2023, Marnin, J.] [granting late claim relief upon determination that wrongful confinement claim alleging violations of the HALT Act had an appearance of merit]; see generally Miller v State of New York, 124 AD3d 997, 999 [3d Dept 2015] [holding that confinement was not privileged where the claimant was confined longer than authorized under sentence and commitment order]).

Turning to the final late claim factor, claimant has not demonstrated the unavailability of an alternative remedy. Nevertheless, because most of the factors enumerated under Court of Claims Act § 10 (6) weigh in claimant's favor—including, crucially, the appearance of merit—late claim relief is warranted to the extent the claim alleges violations of the HALT Act. Accordingly, it is hereby ordered that the motion is denied in part, to the extent it seeks a declaration that service of the claim be deemed proper nunc pro tunc; it is further ordered that the motion is otherwise granted, to the extent it requests permission to file a late claim, as limited to the cause of action for wrongful confinement only to the extent it alleges violations of the HALT Act; and it is further ordered that, within 60 days of the date of filing of this decision and order, claimant shall file with the office of the Clerk of the Court a claim, with the State of New York as the only proper defendant, limited solely{**84 Misc 3d at 599} to the cause of action for wrongful confinement based upon asserted violations of the HALT Act; and within that same period, claimant shall serve a copy of the new claim upon the Office of the Attorney General personally or by certified mail, return receipt requested. In serving and filing the claim, claimant is directed to follow all of the requirements of Court of Claims Act §§ 11 and 11-a, as well as the Uniform Rules for the Court of Claims, including repayment of the required filing fee for new claims.