May 22, 1967
Appeal by the State from a judgment of the Court of Claims which awarded claimant $115,000 for unlawful imprisonment and cross appeal by claimant on the ground of inadequacy. Claimant having pleaded guilty to a change of burglary, third degree, on October 6, 1925 received a suspended sentence and was placed on probation. He violated his probation and on August 14, 1926 he was sentenced to the New York State Reformatory at Elmira where he was to remain until "discharged by due process of law." Following observation and tests at Elmira, claimant was classified as a low grade moron and on September 15, 1927 was transferred to the Institution for Male Defective Delinquents at Napanoch where he was classified as sexually perverted, dull and quarrelsome. In December, 1931 claimant was paroled and went to live with an aunt. His stay there was marred by suicide threats and arguments, and after four weeks, he was returned to Napanoch at the request of his aunt. After several years in Napanoch, claimant was considered psychotic and upon a certificate of lunacy was transferred to the Dannemora State Hospital on March 3, 1936. Claimant's criminal sentence expired in September, 1936 and pursuant to the then existing section 384 Correct. of the Correction Law, he was committed to Dannemora State Hospital without service of notice of the petition to him on the ground that such notice "would tend to unnecessarily excite the patient." There is no question but that the original 10-year criminal sentence was valid and that during all those years he suffered from varying degrees of mental illness and his condition worsened to the end that in February, 1936 he was pronounced "insane" and unsuitable for further care and custody in Napanoch. Claimant's observation records reveal that some weeks following his admittance to Dannemora there was an improvement in his personality adjustment, but by the Fall of 1940, his records show a severe mental disorder, with delusions, retardation of thought, and general disorientation. This condition continued unabated until his release was secured in December, 1960 on a writ of habeas corpus. He was discharged as unimproved with a diagnosis of "psychosis with mental deficiency, paranoid type." In May, 1961 claimant was admitted to the Hudson River State Hospital, apparently still suffering from paranoic schizophrenia. In early 1965, he was allowed to leave Hudson River on convalescent care status. Claimant asserts, and indeed the trial court found, that the State is liable to him for false imprisonment on the authority of Troutman v. State of New York ( 273 App. Div. 619). There we held it improper to dismiss a claim for false imprisonment based on lack of notice to the prisoner that the application for his retention beyond the expiration of his criminal sentence had been made, without affording claimant an opportunity to prove "Whether he was sane during any of the period between the date of his original commitment and the date of his release" (p. 622). A judgment recovered by claimant upon the retrial directed by this court was, however, reversed upon appeal and the claim was dismissed for failure to establish actionable damage ( 278 App. Div. 728). In the case before us, there is no contention that claimant was sane at the time of the retention order or at any time thereafter prior to his discharge and, indeed, all the evidence is to the contrary. Claimant's proof in this case was directed at demonstrating the therapeutic and rehabilitative advantages of treatment at a civil mental hospital as opposed to the treatment he did receive at Dannemora. This was the basis for the damages assessed by the trial court ( 49 Misc.2d 533, 538). We find such proof irrelevant in the present case, initially at least in regard to proximate cause following the failure to give notice, for under the then existing section 384 Correct. of the Correction Law, the court did not have authority to direct claimant's transfer to a civil mental hospital. Its only power was to approve or disapprove the application for retention at Dannemora. If notice affording due process had been given and the court had become satisfied that the prisoner was insane, as he quite evidently was, its only choice would have been to approve the application for retention at Dannemora. But in any event there is no evidence of any substance that at that time or at any time thereafter claimant's condition would have been cured or substantially improved by his transfer to a civil hospital or by his discharge and we are constrained to find conjectural merely the proof upon which the award rests. It is to be noted that under section 385 Correct. of the Correction Law, as it read in 1936, the Commissioner of Mental Hygiene could have directed claimant's transfer to a civil hospital. Such discretionary procedure, however, had nothing whatsoever to do with the section 384 proceedings. In conclusion, we would emphasize claimant's theory of damage and the question of medical judgment which seems to us its necessary predicate. In his brief, claimant denies that the issue is whether or not he was insane, and asserts, rather, that the question is whether, "even if he was insane * * * he was damaged, rather than helped" by commitment to Dannemora State Hospital, rather than to a hospital under the direction of the Department of Mental Hygiene. In view of the undoubted discretionary right that the appropriate State authorities possessed to discharge, parole or transfer claimant, should either course have been advisable, the most that can be predicated on their omission to act is a contention that the State's physicians were guilty of errors of professional judgment, if claimant's medical proof be credited. Errors of that nature do not, however, cast liability upon the State. ( St. George v. State of New York, 283 App. Div. 245, affd. 308 N.Y. 681; Taig v. State of New York, 19 A.D.2d 182.) Judgment reversed, on the law and the facts, and claim dismissed, without costs. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum Per Curiam.