New York State Court of Claims

New York State Court of Claims

MCCLOUD v. THE STATE OF NEW YORK, #2000-001-075, Claim No. 102571, Motion Nos. M-62059, CM-62383


Synopsis


The Court grants defendant's cross motion to dismiss the claim. As a result, the issues raised by claimant's motion to dismiss defendant's affirmative defenses are moot and the Court need not reach them.

Case Information

UID:
2000-001-075
Claimant(s):
MICHAEL MCCLOUD
Claimant short name:
MCCLOUD
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The original caption names certain individually named parole officers as defendants. The Court of Claims has no jurisdiction to hear claims against individuals or entities other than the State of New York; therefore, the caption has been amended, sua sponte, to reflect the only proper defendant (see, Court of Claims Act, § 9).
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102571
Motion number(s):
M-62059
Cross-motion number(s):
CM-62383
Judge:
Susan Phillips Read
Claimant's attorney:
Michael McCloud, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Alan B. Berkowitz, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
January 4, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on claimant's motion seeking to dismiss defendant's affirmative defenses stated in its answer pursuant to CPLR 3211 (b)[1] and defendant's cross motion to dismiss the claim: Notice of Motion to Strike Defendant's Affirmative Defenses, dated July 17 and filed July 21, 2000; Verified Motion to Strike Defendant's Affirmative Defenses, sworn to July 17 and filed July 21, 2000; the claim, sworn to May 22 and filed June 6, 2000, with annexed Exhibits A-C; Verified Answer, dated June 21 and filed June 27, 2000; Notice of Cross Motion, dated September 14 and filed September 18, 2000; Affirmation of Alan B. Berkowitz, Esq., AAG, dated September 14 and filed September 18, 2000, with annexed Exhibits A-B; Affidavit in Support of Reply to Defendants' Cross Motion of Michael McCloud, pro se, sworn to September 20 and filed September 22, 2000; Affidavit to Return Motion Back to Motion Term Calendar and to Extend Time to Pay Filing Fee of Michael McCloud, pro se, sworn to September 13 and filed September 15, 2000, with annexed Exhibits A-C; and Daily Report dated September 7, 2000.


On June 6, 2000, claimant Michael McCloud ("claimant"), pro se, filed this claim alleging that certain parole officers, the State Division of Parole and defendant State of New York ("defendant" or "the State") intentionally submitted false business records and statements against him, causing such emotional injuries as the loss of support of family members and his girlfriend (claim, sworn to May 22 and filed June 6, 2000, with annexed Exhibits A-C ["claim"], ¶¶ 4, 8-9). The alleged defamatory statement was contained in a probation report, which stated that claimant had violated parole by "using drugs, driving an unregistered vehicle and sexually abusing a minor" (claim, ¶ 8, Exh. A).

In its answer filed on June 27, 2000, defendant denied the substantive allegations of the claim and interposed eight affirmative defenses (Verified Answer, dated June 21 and filed June 27, 2000 ["answer"]). Claimant thereafter moved to strike the State's affirmative defenses. Although this motion was originally returnable on August 23, 2000, it was brought to the Court's attention that the Attorney-General had not been served (see, Daily Report dated September 7, 2000).[2] As a result, the Court adjourned the motion until October 11, 2000 to give the State the opportunity to respond.

Defendant subsequently cross-moved to dismiss the claim because claimant allegedly failed both to commence the action prior to the expiration of the Statute of Limitations and to serve the State in compliance with the time limitations of Court of Claims Act §§ 10 and 11 (Notice of Cross Motion, dated September 14 and filed September 18, 2000; Affirmation of Alan B. Berkowitz, Esq., AAG, dated September 14 and filed September 18, 2000, with annexed Exhibits A-B ["Berkowitz Aff."], ¶ 8). Claimant opposes the cross motion, arguing that he timely commenced his action because he filed the claim within 90 days of his discovery of the alleged defamatory statement (Affidavit in Support of Reply to Defendants' Cross Motion of Michael McCloud, pro se, sworn to September 20 and filed September 22, 2000 ["McCloud Reply Aff."]). Because the State's motion is dispositive, the Court reaches it first.

Court of Claims Act § 10 (3-b) sets forth:
A claim to recover damages for injuries to property or for personal injuries caused by the intentional tort of an officer or employee of the state * * * shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim.

Accordingly, the Court cannot "obtain jurisdiction to adjudicate a claim unless the claimant timely files a claim or [serves upon the State] a notice of intention to file a claim" (Selkirk v State of New York, 249 AD2d 818, 819; see also, Buckles v State of New York, 221 NY 418; Mallory v State of New York, 196 AD2d 925; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607).

Here, claimant acknowledges that he did not serve a notice of intention upon the State (claim, ¶ 3; McCloud Reply Aff., ¶ 4), and it is evident that he did not serve the claim upon the State within 90 days of its accrual (Court of Claims Act § 10 [3-b]) (claim, Exh. C), which is the date the alleged defamatory statement was published on July 1, 1998 (see, Teneriello v Travelers Cos., 226 AD2d 1137, 1138, lv denied 89 NY2d 801; Bassim v Hassett, 184 AD2d 908). Nor did claimant comply with the Statute of Limitations in article 2 of the CPLR by commencing his claim within one year (see, CPLR 215 [3]; Court of Claims Act § 10 [6]). The failure to comply with the filing and service requirements of the Court of Claims Act renders the claim jurisdictionally defective and mandates dismissal (see, Byrne v State of New York, supra ) where, as here, these defenses were raised in the answer (answer, ¶¶ sixth, eleventh; Berkowitz Aff., ¶ 8; see, Court of Claims Act § 11 [c]).

Claimant argues that he did not discover the alleged defamatory statement until March 22, 2000, thus making his claim's service and filing timely (Claim, ¶¶ 3, 5-6; McCloud Reply Aff., ¶¶ 2, 4). In New York, however, "[t]he Statute of Limitations of one year [CPLR 215 (3), as well as Court of Claims Act § 10 (3-b)] applies, and the fact that the libel may not have been discovered until later matters not, for the cause of action accrues on the date of publication" (Fleischer v Institute for Research in Hypnosis, 57 AD2d 535; see, Teneriello v Travelers Cos., supra, at 1138).

Based on the foregoing, the Court grants defendant's cross motion to dismiss the claim. As a result, the issues raised by claimant's motion to dismiss defendant's affirmative defenses are moot and the Court need not reach them.

January 4, 2001
Albany, New York
HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]
Although claimant erroneously cites CPLR 404 (b) pertaining to special proceedings, CPLR 3211 (b) governs the motion.
[2]
Claimant's motion papers contain a sworn affidavit of service stating that copies of claimant's motion papers were sent via first class mail to the Attorney-General through the Hudson Correctional Facility mail.