Court of Claims, August 2, 2019

Letitia James, Attorney General (Douglas R. Kemp of counsel), for defendant.

Shawn Green, claimant pro se.

Defendant moves, in lieu of answering, to dismiss six of claimant's eight causes of action set forth in his claim for lack of jurisdiction. In particular, defendant seeks dismissal of claimant's two separate wrongful confinement causes of action in the claim (numbered first, second, fourth and fifth causes of action in claim) pursuant to CPLR 3211 (a) (2) and (8) and Court of Claims Act § 11 (b), respectively, for lack of jurisdiction because the claim allegedly fails to "allege an accrual date." Defendant also moves to dismiss the claim's bailment (numbered third cause of action) and negligence causes of action (numbered sixth and seventh causes of action) for lack of merit.

The claimant opposes the defendant's pre-answer motion to dismiss the above-referenced causes of action in the claim.

The court notes that the copy of the claim attached to defendant's motion papers is incomplete and omits many of the claim's allegations. In deciding the defendant's pre-answer motion, the court has relied on a copy of the claim as filed with the Clerk of the Court of Claims.

The wrongful confinement causes of action will be considered first.

Court of Claims Act § 11 (b) provides, at relevant part, that "[t]he claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained."

The standard of review in assessing whether a claim complies with section 11 (b) as to adequately stating the nature of the claim is well-settled:

"What is required is not absolute exactness, but simply a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be{**65 Misc 3d at 545} specific enough so as not to mislead, deceive or prejudice the rights of the State. In short, substantial compliance with section 11 is what is required . . . . Conclusory or general allegations of negligence that fail to adduce the manner in which the claimant was injured and how the State was negligent do not meet its requirements" (Heisler v State of New York, 78 AD2d 767, 767-768 [4th Dept 1980]; see Cendales v State of New York, 2 AD3d 1165, 1167 [3d Dept 2003]; Sega v State of New York, 246 AD2d 753, 755 [3d Dept 1998], lv denied 92 NY2d 805 [1998]).

As Heisler instructs, while absolute exactness is not necessary, the statement required by Court of Claims Act § 11 (b) should be sufficiently definite to allow the State to promptly investigate its potential liability under the circumstances (Demonstoy v State of New York, 130 AD3d 1337 [3d Dept 2015]).

The claim alleges that claimant was confined to his cell, and to keeplock for six days, as a result of two separate inmate disciplinary proceedings. The claim sets forth two separate wrongful confinement causes of action (numbered first, second, fourth and fifth causes of action in claim).

The two separate wrongful confinement causes of action allege that neither misbehavior report (MBR), each charging claimant with facility rule violations, provided adequate notice of the offenses charged and both were arbitrary and capricious. The two separate wrongful confinement causes of action also each allege that the disciplinary hearings were conducted by a biased hearing officer and were not conducted in an impartial manner.

The claim, and its attachments, identifies claimant as an inmate at Clinton, sets forth specific dates as to when the respective MBRs were issued (Dec. 18, 2018, and Feb. 12, 2019, respectively), when the disciplinary hearings commenced (Dec. 24, 2018, and Feb. 19, 2019, respectively) and when the disciplinary determinations were made (Jan. 1, 2019, and Feb. 19, 2019, respectively). The claim, and its attachments, provided the names of the correction officers who wrote the MBRs and the names of the correction officers who conducted the disciplinary hearings.

The claim, and its attachments, also contains copies of the respective MBRs and copies of claimant's administrative appeals{**65 Misc 3d at 546} regarding the inmate disciplinary proceedings. The defendant maintains records of misbehavior reports and disciplinary hearings and is presumably able to review its records relating to claimant with respect to the dates provided.

The claim was served on defendant on April 3, 2019.

The claimant's affidavit in opposition to the defendant's pre-answer motion to dismiss the claim includes copies of each disciplinary hearing determination challenged by claimant.

The defendant does not challenge the pleading adequacy of the claim except that it fails to set forth an "accrual date" of each wrongful confinement cause of action. Defendant accurately points out that wrongful confinement claims "accrue on the date when the confinement terminates." Defendant asserts that because claimant "does not allege an accrual date for the alleged wrongful confinement, causes of action one, two, four and five are deficient and fail to satisfy the pleading requirements of Court of Claims Act § 11 (b)."

In this regard, the court notes that Court of Claims Act § 11 (b) expressly requires that claimant state the date when the claim "arose" rather than when the claim "accrued." Significantly, Court of Claims Act § 10 (3), which concerns the timeliness of a claim, avoids the use of the term "arose" and requires that the claim be "filed and served upon the attorney general within ninety days after the accrual of such claim."

The court recognizes that using the terms "arose" and "accrued" interchangeably in the context of wrongful confinement claims may cause confusion, as acknowledged in Huff v State of New York (47 Misc 2d 1053, 1054 [Ct Cl 1965], mod 27 AD2d 892 [3d Dept 1967]):

"[A] distinction must be made between 'claim arises' and 'claim accrues.' The claim of false arrest and imprisonment arises or begins on the date of the false arrest and imprisonment, and . . . the 90-day notice requirement commences to run as soon as the claimant is not under a legal disability, i.e., actual imprisonment."

In other words, a wrongful confinement or false imprisonment cause of action arises when the confinement or imprisonment begins but accrues when the confinement or imprisonment terminates.

The court further notes that accrual of a wrongful confinement claim is a common-law concept rather than a statutorily defined event, and that the purpose of measuring accrual of a{**65 Misc 3d at 547} wrongful confinement cause of action from the claimant's release from confinement is to recognize the legal difficulty a confined claimant faces in interposing a claim.

The distinctive nature of a wrongful confinement (or false imprisonment) accrual is illustrated by Justice Scalia in Wallace v Kato (549 US 384, 388-389 [2007]):

"Under those [common-law] principles, it is 'the standard rule that [accrual occurs] when the plaintiff has "a complete and present cause of action," ' Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997) (quoting Rawlings v. Ray, 312 U.S. 96, 98 (1941)), that is, when 'the plaintiff can file suit and obtain relief,' Bay Area Laundry, supra, at 201. There can be no dispute that petitioner could have filed suit as soon as the allegedly wrongful arrest occurred, subjecting him to the harm of involuntary detention, so the statute of limitations would normally commence to run from that date . . .

"The running of the statute of limitations on false imprisonment is [however] subject to a distinctive rule—dictated, perhaps, by the reality that the victim may not be able to sue while he is still imprisoned: 'Limitations begin to run against an action for false imprisonment when the alleged false imprisonment ends.' 2 H. Wood, Limitation of Actions § 187d(4), p. 878 (rev. 4th ed. 1916); see also 4 Restatement (Second) of Torts § 899, Comment c (1977); A. Underhill, Principles of Law of Torts 202 (1881)" (emphasis added).

The instant claim stated when the wrongful confinement causes of action arose, as required by Court of Claims Act § 11 (b), although it arguably failed to state when the causes of action accrued (see Huff, 47 Misc 2d at 1054; 59 NY Jur 2d, False Imprisonment § 127 ["A false imprisonment begins at the moment of illegal detention, and is complete when the detention ceases"]).

The court finds that the wrongful confinement causes of action in the claim satisfied the requirements of Court of Claims Act § 11 (b) with respect to when the claim "arose" and were sufficiently definite to allow the State to promptly, and specifically, investigate its potential liability under the circumstances.

The defendant's pre-answer motion to dismiss the claim's bailment and negligence causes of action for lack of merit, in{**65 Misc 3d at 548} effect seeking summary judgment, is denied as premature (CPLR 3212 [a]; Matter of Dashnaw v Town of Peru, 111 AD3d 1222, 1224 [3d Dept 2013] ["(A) summary judgment motion is premature prior to the service of an answer"]).

The defendant's pre-answer motion to dismiss the claim is denied.