Papers Considered: 1. Claimant’s Notice of Motion filed May 18, 2023; 2. Affirmation of Eric D. Levy, Esq., dated May 16, 2023, with exhibits; 3. Opposing Affirmation of Felice V. Torres, Esq. (AAG), dated July 20, 2023, with exhibit; 4. Reply Affirmation of Eric D. Levy, Esq., dated July 27, 2023; and 5. Claim, filed; Answer, filed. DECISION AND ORDER In this alleged false imprisonment action arising from time Claimant, Jonathan Afanador, spent incarcerated as a result of a Division of Parole detainer, Claimant moves for summary judgment on the issue of liability pursuant to CPLR 3212. Upon reviewing the merits of Mr. Afanador’s application, summary judgment on liability is granted in his favor, as a matter of law. BACKGROUND The claim in this matter, filed on November 21, 2018, alleges that Defendant’s actions caused Mr. Afanador to be illegally confined beyond the maximum expiration date of his sentence (Claimant’s Exhibit A). Defendant filed its Verified Answer on January 2, 2019 (Claimant’s Exhibit B). Mr. Afanador filed a Verified Bill of Particulars, dated January 22, 2019, in response to Defendant’s Demand, including the “Final Discharge” by the Department of Corrections and Community Supervision (Claimant’s Exhibit C). Prior to filing the Note of Issue, Claimant filed his first Motion for Summary Judgment on liability (M-97503). By Decision and Order entered March 24, 2022 (Mejias-Glover, J.), the Court denied his motion. In relevant part, the Court held: In the present case, Claimant’s moving papers include only an Affirmation in Support by his Attorney, who has no personal knowledge of the facts and/or circumstances in this matter. There is neither an affidavit by Claimant nor is there any other evidence, such as deposition transcripts or written admissions submitted in support of the instant motion. The failure to include an Affidavit of Claimant, and other available proof, as set forth above, is fatal to establishing Claimant’s prima facie burden of entitlement to summary judgment” (citations omitted) (NYSCEF Doc No. 34, p. 3). Discovery continued, including Examinations Before Trial of Claimant (Claimant’s Exhibit G) and Shanavia Dandridge, a Senior Parole Officer with the Division of Parole (Claimant’s Exhibit D). Claimant subsequently filed his Note of Issue on April 14, 2023. He once again seeks Summary Judgment on liability. In support of his motion, Claimant relies, inter alia, on his Verified Bill of Particulars (Exhibit C); the EBT of SPO Dandridge (Exhibit D); DOCCS’s Warrant 795894 dated July 23, 2018 (Exhibit E); SPO Dandridge’s January 25, 2022 Affidavit (Exhibit F); Mr. Afanador’s EBT (Exhibit G); DOCCS’s “FINAL DISCHARGE” dated August 17, 2018 (Exhibit H); DOCCS’s “WARRANT LIFT AUTHORIZATION” dated September 5, 2018 (Exhibit I); and “New History NYSID Number Search” listing Claimant’s admission date as July 24, 2018 and discharge date as September 6, 2018 (Exhibit J). In opposition to the motion, Defendant relies on the EBT and affidavit of SPO Dandridge (Claimant’s Exhibits D and F); and “DOCCS VIOLATION OF RELEASE REPORT” (Defendant’s Exhibit A). FACTS While Claimant lists March 21, 2015 as the date of his sentence to one to three years of incarceration (Claimant’s Exhibit A, claim at 7), this was actually his plea date to a violation of Penal Law §§110/120.05, (Attempted Assault in the Second Degree). His sentencing date was January 15, 2016 (Defendant’s Exhibit A, “DOCCS VIOLATION OF RELEASE REPORT”). In his Verified Bill of Particulars, Mr. Afanador contends that following his sentencing he was “received into the State system on January 25, 2016″ (Claimant’s Exhibit C, 6). Nonetheless, the following facts, as established by Claimant’s Exhibits, are not in dispute: Mr. Afanador was released to parole supervision on February 28, 2018, with a maximum expiration date of August 17, 2018 (Exhibit F; Defendant’s Exhibit A). The maximum expiration date “is the date that a releasee will be, essentially, off of parole. So that will be their last date under community supervision” (Exhibit D — Dandridge EBT: 15). This date can be extended if “the ALJ, at a final hearing determines that there was delinquent time, and that delinquent time will get added onto the maximum expiration date” (id.). On July 23, 2018, shortly before Claimant’s maximum expiration date, but nonetheless while Claimant was still under the supervision of the Division of Parole, the latter issued a detainer (Warrant No. 00795894) against Claimant for various alleged violations of the conditions of his parole and a warrant was issued for Claimant’s arrest (Claimant’s Exhibit E). The next day, July 24, 2018, Claimant was arrested and confined at the New York City Department of Correction (Exhibit F). While in custody for the alleged parole violations, Claimant waived his right to a preliminary parole hearing; his final parole hearing was scheduled for August 10, 2018, one week before the maximum expiration date (Exhibit D: 17-18; Exhibit F: 5; Defendant’s Exhibit A). DOCCS’s own “FINAL DISCHARGE” document dated August 17, 2018, certifies that “JONATHAN AFANADOR has this day been discharged from further jurisdiction of the Board of Parole in accordance with the provisions of law” (Exhibit H). Defendant maintains that due to an admitted clerical error, however, DOCCS never conducted Claimant’s final parole hearing. “This error was not caught until after the [C]laimant had reached his original maximum expiration date” (Exhibit F- Dandridge Affidavit at 5). “As the error was caught after the [C]laimant’s maximum expiration date, it is DOCCS policy to lift the warrant and release the [C]laimant from DOCCS custody, as DOCCS does not apply a sentence retroactively” (id., 6; Exhibit D- 4/11/23 Dandridge EBT: 26-28). Claimant has alleged and Defendant does not dispute, that the only detainer preventing Claimant’s release on his August 17, 2018, maximum expiration date was the Division of Parole detainer (Levy Reply Affirmation, 4; Defendant’s Exhibit A). A “WARRANT LIFT AUTHORIZATION” was signed on September 5, 2018 (Exhibit I) and Claimant was released from custody on September 6, 2018, shortly after DOCCS discovered the error ((Exhibit F, 6; Exhibit J); this was twenty (20) days after the maximum expiration date. DISCUSSION Claimant urges the Court to grant summary judgment on liability on the grounds that since no final parole hearing was ever conducted, and Claimant’s maximum expiration date was never extended, Defendant had no justifiable reason for detaining Claimant beyond his maximum expiration date of August 17, 2018. Defendant counters that “the claimant in waiving his preliminary hearing also waived probable cause essentially admitting to one or more of the things he was accused of. As such, any claims for unlawful imprisonment must fail since probable cause is established for his arrest and confinement. Further, the claimant’s confinement was privileged in that he was held pursuant to legal process which is valid on its face. At no time in the instant matter it is shown, proved or even alleged by claimant that the legal process was invalid or that parole lacked jurisdiction of the claimant or the subject matter” (Torres Affirmation in Opposition to Claimant’s Motion at 8). Defendant’s arguments are unavailing. Summary judgment is a “drastic remedy” and may be granted only when no triable issues of fact exist (Andre v. Pomeroy, 35 NY2d 361, 364 [1974]; see CPLR 3212). A movant bears the initial burden of establishing the right to judgment as a matter of law by tendering sufficient evidence, in admissible form, demonstrating the absence of material issues of fact from the case (see Matter of Eighth Jud. Dist. Asbestos Litig., 33 NY3d 488, 496 [2019], citing Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Trustees of Columbia Univ. in the City of N.Y. v. D’Agostino Supermarkets, Inc., 36 NY3d 69, 73-74 [2020]). In this regard, “conclusory assertions are insufficient to demonstrate the absence of any material issues of fact” (see Ayotte v. Gervasio, 81 NY2d 1062 [1993]). As the proponent of this motion, it is Claimant’s burden to demonstrate that he was falsely imprisoned as a matter of law. In order to establish a cause of action for false imprisonment, Claimant must prove that “(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged” (Broughton v. State of New York, 37 NY2d 451, 456, [1975], cert. denied sub nom. Schanbarger v. Kellogg, 423 US 929; Martinez v. City of Schenectady, 97 NY2d 78 [2001]). “A detention, otherwise unlawful, is privileged where the confinement was by arrest under a valid process issued by a court having jurisdiction” (Donald v. State of New York, 17 NY3d 389, 395 [2011])(internal quotations and citations omitted). Here, Defendant seems to implicitly concede that Claimant has satisfied the first three elements of the claim for false imprisonment but argues that the Claimant’s motion must be denied because the confinement of Claimant in this instance was privileged. Defendant concedes that it bears the burden of establishing that the detention was privileged (Torres Affirmation at 7, citing Moulton v. State of New York, 114 AD3d 115, 120 [3d Dept. 2013] and Hudson v. State of New York, 115 AD3d 1020, 1022 [3d Dept. 2014]). Claimant’s assertion that his continued confinement after August 17, 2018, was not privileged is straightforward and demonstrated in the documentation attached to his application, including (1) the “FINAL DISCHARGE” document certifying that Claimant had “been discharged from further jurisdiction of the Board of Parole” on August 17, 2018, (Exhibit H); and (2) the affidavit (Exhibit F) and the deposition transcript (Exhibit D) of Defendant’s employee, Senior Parole Officer Shanavia Dandridge, who acknowledged that a final hearing was necessary to extend the maximum expiration date. The Court notes that in both her affidavit and deposition testimony, SPO Dandridge offered her opinion that a final parole hearing for Claimant, if one had been conducted, would have resulted in an extension of the maximum expiration date of Claimant’s sentence. In addition to being speculative, this opinion is of no moment because Claimant’s final parole hearing did not occur, and Claimant’s maximum expiration date was not thereby extended (People ex rel. Hines v. Bradt, 86 AD3d 678 [3d Dept. 2011]) (Parole board had no discretionary authority over Petitioner’s release upon the expiration of a 12-month assessment and his continued incarceration was illegal). The Court finds that Claimant has satisfied his prima facie burden of demonstrating his entitlement to judgment as a matter of law. Where, as here, the movant has satisfied the prima facie obligation, the burden then shifts to the opposing party to demonstrate, also by admissible evidence, the existence of an issue of material fact (see Vega v. Restani Constr. Corp., 18 NY3d 499, 503 [2012], citing Alvarez, 68 NY2d at 324). At the summary judgment stage, the essence of the Court’s function is “‘issuefinding, rather than issue-determination’” (Ferrante v. American Lung Assn., 90 NY2d 623, 630, quoting Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). And in determining a motion for summary judgment, the evidence must be viewed in the light most favorable to the opposing party (Vega, 18 NY3d at 503), and “‘every available inference must be drawn in the [non-moving party's] favor’” (Eighth Jud. Dist. Asbestos Litig., 33 NY3d at 496 [alteration in original], quoting De Lourdes Torres v. Jones, 26 NY3d 742, 763 [2016]). Accordingly, the burden in this application shifts to Defendant to demonstrate that its continued detention of Claimant after the expiration of his sentence was privileged. Although Defendant maintains that by waiving his right to a preliminary hearing, Claimant was “essentially admitting to one or more of the things he was accused of” and thus established probable cause for his arrest and confinement (Torres Affirmation in Opposition to Claimant’s Motion at 8), this argument misses the mark. It is true, as Defendant suggests, that “[g]enerally, where a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged…and everyone connected with the matter is protected from liability for false imprisonment” (Holmberg v. County of Albany, 291 Ad2d 610, 612 [3d Dept. 2002], lv. denied 98 NY2d 604 [2002]). In this case, however, the waiver established probable cause for Claimant’s arrest and confinement up to August 17, 2018. Claimant agrees that his confinement was privileged during this period. Yet Defendant’s own witness and DOCCS’s written evidence confirmed that parole’s jurisdiction ended on August 17, 2018, and the only way to extend parole’s jurisdiction over Claimant was through a finding of Claimant’s guilt after a final hearing (Exhibit H: Final Discharge; Exhibit D- Dandridge EBT: 15). Defendant admits that it failed to conduct any such hearing. Hence, DOCCS had no authority to hold Claimant beyond his maximum expiration date. Defendant nonetheless urges that Claimant’s release from custody on September 6, 2018, although beyond the maximum expiration date of Claimant’s sentence, was still within the time frame for conducting a final parole hearing, had Defendant chosen to go forward with the hearing. Accordingly, Defendant contends that Claimant’s detention was privileged. Yet DOCCS is not entitled to retain an individual on parole beyond the “maximum expiration date to give the Board of Parole an opportunity to conduct a hearing” (People ex rel. Arena v. Meloni, 128 AD2d 285, 288 [4th Dept. 1987]). Defendant has failed to produce any evidence that Claimant’s continued confinement after August 17, 2018, was imposed “pursuant to statute or in accordance with regulation” (Nelson v. State of New York, 20 Misc.3d 1125[A] at 3 [Ct Cl 2008], affd on other grounds, 67 AD3d 1142 [3d Dept 2009]). Accordingly, Defendant’s continued confinement of Claimant after August 17, 2018, was not privileged. Miller v. State of New York (124 AD3d 997 [3d Dept 2015]), is instructive. As stated by the Appellate Division, Third Department: Defendant’s further contention, that the need to finalize the terms of claimant’s post release supervision conflicted with the expiration of his prison sentence, and somehow authorized his continued detention under the terms of the sentence and commitment order, is not well taken. Claimant was not confined after the maximum expiration date of his prison sentence because of any “conflicting mandates” in the commitment order, but rather because DOCCS officials chose to hold him while they belatedly finalized the terms of his post release supervision. Defendant’s related contention that DOCCS officials acted within their discretion by confining claimant until those terms had been finalized is also without merit, as it is well settled that DOCCS has no jurisdiction to extend or modify a prison sentence (id. at 999). Under the circumstances, Defendant has failed to sufficiently rebut Claimant’s prime facie demonstration of his right to summary judgment on liability as a matter of law. CONCLUSION Accordingly, for the reasons set forth above, it is hereby ORDERED, that claimant’s motion for summary judgement on liability (M-99458) is GRANTED, with liability apportioned at one hundred percent (100 percent) against Defendant; and it is further ORDERED, that a trial on the issue of damages shall be scheduled as soon as reasonably practicable. Dated: October 3, 2023
