The following papers numbered 1-3 were read and considered by the Court on movant’s application for leave to serve and file a late claim: Notice of Motion, Attorney’s Supporting Affirmation, Movant’s Affidavit, Proposed Claim and Exhibits 1 State’s Attorney’s Affirmation in Opposition 2 Movant’s Attorney’s Affirmation in Reply 3 DECISION AND ORDER Movant seeks leave for permission to serve and file a late claim pursuant to Court of Claims Act §10 (6). The State opposes the motion. The proposed claim alleges that movant was wrongfully confined at Fishkill Correctional Facility (Fishkill) from January 22 to March 26, 2020, based on a false positive Microgenics Corporation rapid drug screening test that prison authorities knew was unreliable, and disciplinary hearing proceedings that violated several regulations and movant’s due process rights. The proposed claim also pleads a violation of movant’s civil rights under 42 USC §1983, which movant now seeks the Court’s permission to withdraw without prejudice (Brewington Reply Affirmation 2). The State does not oppose this request.1 In support of his application, movant submits his own affidavit, an attorney’s affirmation, the proposed claim, records of the Department of Corrections and Community Supervision (DOCCS) regarding the incident (Exs. A-D), a federal class action complaint against Microgenics (Ex. E), several news stories about the use of faulty Microgenics drug tests by DOCCS (Exs. F-H), and then Governor Andrew M. Cuomo’s Executive Orders (Exs. I-L). The proposed claim refers to movant’s affidavit and the annexed exhibits. The State submitted an attorney’s affirmation in opposition. Movant submitted an attorney’s affirmation in reply. Specifically, the proposed claim alleges and movant attests in his affidavit the following facts. On June 26, 2019, movant was transferred and admitted to the Temporary Release Program (TRP) at Fishkill, allowing him to spend five days and four nights a week at home and to work while incarcerated. On January 9, 2020, he was given a Microgenics rapid screening urinalysis test that came back positive for opiates. Movant was shocked because he had not taken opiates. On January 12, 2020, a corrections officer told movant he was removed from the TRP. An Offender Rehabilitation Coordinator wrote a misbehavior report charging movant with a Tier III disciplinary charge for drug use (Rule 113.24) and a charge for violating the TRP rules (Rule 108.14). Movant received the report on January 14, 2020. Before his disciplinary hearing on January 29, 2020, he made several requests that a second urinalysis be done using his sample. A second, confirmatory urinalysis was not done and movant was told that his urine had been thrown out. Based on the one screening test, he was removed from the TRP and prevented from going home and working at Wendy’s restaurant, where he was being considered for a promotion. On January 22, 2020, movant was transferred from the residential TRP housing to a general population dormitory, and his good time and privileges were revoked. Movant’s Superintendent’s Hearing was held two weeks after he was removed from the TRP and the education supervisor served as the hearing officer. At the hearing, the hearing officer and said movant would be denied privileges if he contested the ticket. The Offender Rehabilitation Coordinator, who wrote the misbehavior report, said movant would never go home unless he pled guilty. Movant did not plead guilty. He was found guilty by the hearing officer. Movant appealed, and on March 26, 2020, he was released without explanation, 11 days after his conditional release date of March 15, 2020. The federal class action complaint, annexed to the proposed claim as Exhibit E, alleges that in 2018, DOCCS contracted with Microgenics to supply DOCCS with rapid drug screening tests. The complaint also alleges that after DOCCS determined the positive results generated by the Microgenics screening tests were unreliable, it reversed all guilty disciplinary dispositions for every positive result in 2019 and terminated its contract with Microgenics in January 2020. One of the news articles (Ex. F), published in Gothamist on November 21, 2019, reported on the punishment of thousands of incarcerated persons, including 300 at Fishkill, based on the faulty drug screening tests. Notably, the Superintendent’s Hearing Disposition (Ex. B) notes only the written misbehavior reports as evidence on which the disposition was based. Analysis Court of Claims Act §10 (6) permits this Court to allow the filing of a late claim, if the applicable statute of limitations set forth in article 2 of the CPLR has not expired, upon consideration of the following factors: (1) whether the delay in filing the claim 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 failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop Section IV v. New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979 [1982]; Matter of Martinez v. State of New York, 62 AD3d 1225, 1226 [3d Dept 2009]; Edens v. State of New York, 259 AD2d 729, 730 [2d Dept 1999]). For the purpose of deciding this motion, movant’s unrefuted factual allegations are accepted as true. “Facts stated in a motion for leave to file a late claim…are deemed true for purpose of [the] motion, when not denied or contradicted in opposing affidavits” (Sessa v. State of New York, 88 Misc 2d 454, 459 [Ct Cl 1976], affd 63 AD2d 334 [3d Dept 1978], affd 47 NY2d 976 [1979]; see Schweickert v. State of New York, 64 AD2d 1026, 1026 [4th Dept 1978]; Cole v. State of New York, 64 AD2d 1023, 1024 [4th Dept 1978]). The first issue for determination upon a late claim motion is whether the motion under Court of Claims Act §10 (6) was filed before the expiration of the applicable statute of limitations. The statute of limitations for wrongful confinement and for negligence are, respectively, one year (CPLR 215[3]) and three years (CPLR 214). The instant motion was filed on May 18, 2021. The claim for wrongful confinement accrued when movant was released from confinement on March 26, 2020, more than a year earlier (see Dawes v. State of New York, 167 AD3d 1099, 1100 [3d Dept 2018]; Conner v. State of New York, 268 AD2d 706, 707 [3d Dept 2000] [claim accrued on release from parole]). However, movant correctly argues that executive orders by then New York State Governor Cuomo tolled statutes of limitation from March 20 through November 3, 2020.2 “The period of the toll is excluded from the calculation of the time in which the [claimant] can commence an action” (Chavez v. Occidental Chem. Corp., 35 NY3d 492, 505, n 8 [2020]; see Foy v. State of New York, UID No. 2021-028-505 [Ct Cl, Sise, PJ, Feb. 16, 2021]). The amount of time covered by the original executive order and all extensions is 242 days. The number of days between when the claim accrued, March 26, 2020, and when movant filed the late claim motion on May 18, 2021, is 418 days, 53 days more than a year. The period of the toll, 242 days, subtracted from the period of time between accrual and filing, 418 days, is 176 days. Therefore, on March 26, 2020, 189 days remained before the expiration of the statute of limitations. As such, the instant late claim motion was timely filed before the expiration of the statute of limitations. Turning to the first factor under Court of Claims Act 10 (6), movant’s purported excuse for the delay is the onset and duration of the Covid 19 pandemic. The Court notes that assertions by movant’s attorney in his affirmation indicate that law office failure was also a factor in the delay. Movant had an intake appointment with counsel’s law firm on March 30, 2020, four days after his release, and a retainer agreement was signed on September 2, 2020, “[a]fter investigation and review of the available facts and evidence” (Brewington Affirmation
