| Ortiz v State of New York |
| 2010 NY Slip Op 07863 [78 AD3d 1314] |
| November 4, 2010 |
| Appellate Division, Third Department |
| Ismael Ortiz, Also Known as Jose Rodriguez, Appellant, v State of NewYork, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Michael S. Buskus of counsel), forrespondent.
Egan Jr., J. Appeal from an order of the Court of Claims (Collins, J.), entered July 29, 2009, whichdenied claimant's application pursuant to Court of Claims Act § 10 (6) for permission to file alate notice of claim.
In January 2002, claimant was sentenced as a second felony offender to a prison term of threeyears upon his plea of guilty of the crime of assault in the second degree. Although the sentencing courtapparently made no mention of the mandatory five-year period of postrelease supervision (seePenal Law § 70.45 [former (1)]), that term was administratively imposed by the Department ofCorrectional Services (hereinafter DOCS) upon claimant's release in November 2003. Following theCourt of Appeals' decisions in People vSparber (10 NY3d 457 [2008]) and Matter of Garner v New York State Dept. of Correctional Servs. (10 NY3d358 [2008]), the enactment of Correction Law § 601-d and the expiration of his period ofpostrelease supervision in November 2008, claimant moved for permission to file a late notice of claimalleging, among other things, false imprisonment. The Court of Claims denied claimant's application,finding that it lacked jurisdiction over the proposed claim. This appeal by claimant ensued.
We affirm, albeit for reasons other than those expressed by the Court of Claims. Whether to grantan application for permission to file a late notice of claim involves consideration of various factors,including "whether the claim appears to be meritorious" (Court [*2]ofClaims Act § 10 [6]). Although no one factor is determinative, "it would be futile to permit adefective claim to be filed even if the other factors in Court of Claims Act § 10 (6) supported thegranting of the claimant's motion" (Savino v State of New York, 199 AD2d 254, 255 [1993];see Matter of Martinez v State of NewYork, 62 AD3d 1225, 1226 [2009]).
While there is no indication that claimant ever was arrested, prosecuted or reincarcerated as aresult of violating any condition of his postrelease supervision, he contends that the erroneous impositionof such supervision constitutes a deprivation of liberty that, in turn, gives rise to causes of action for,among other things, false imprisonment, malicious prosecution and negligence. However, recentdecisions have held that DOCS's actions in administratively imposing postrelease supervision in the firstplace and also in confining individuals for a violation of administratively imposed postrelease supervisionare privileged (see Nazario v State of NewYork, 75 AD3d 715, 718 [2010], lv denied 15 NY3d 712, [2010]; Carollo v State of New York, 75 AD3d736, 737 [2010], lv denied 15 NY3d 711, [2010]; Donald v State of New York, 73 AD3d 1465, 1466-1467 [2010]; Collins v State of New York, 69 AD3d46, 51-52 [2009]; see also Scott v Fischer, 616 F3d 100, 107-108 [2d Cir 2010]).Accordingly, the proposed claim is lacking in merit and, as such, it cannot be said that the Court ofClaims abused its discretion in denying claimant's application.
Spain, J.P., Rose, Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.