New York State Court of Claims

New York State Court of Claims

MILLER v. New York, #2000-004-508, Claim No. 94748, Motion No. M-61223


Synopsis


State's motion to dismiss granted

Case Information

UID:
2000-004-508
Claimant(s):
ALEXANDER MILLER
Claimant short name:
MILLER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
94748
Motion number(s):
M-61223
Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
SAMUEL B. MILITELLO, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
ATTORNEY-GENERAL
BY: EARL F. GIALANELLA,Assistant Attorney-General of counsel
Third-party defendant's attorney:

Signature date:
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were considered by the Court:

Claim, filed September 16, 1996 1

Verified Answer, filed October 26, 1996 2

Notice of Motion, filed February14, 2000 3


Affirmation of Earl F. Gialanella, AAG, in support of motion,
dated February 9, 2000, with attached exhibits 4


The State moves for dismissal of the Claim.


The Claim recites in pertinent part:
  1. The time and place of occurrence is 6:15 p.m., September 13, 1994 on State Route 17, at Exit 13, Wurtsboro, N.Y.
  2. The manner in which the claim arose is as follows:
Claimant was falsely arrested by Trooper David A. Rivera, falsely detained at the Liberty/Wurtsboro barracks, subjected to a non-consensual unjustified search and seizure of his motor vehicle, falsely detained and handcuffed, all without probable cause for a period of two hours.

Claimant's van was illegally confiscated, towed an impounded, causing claimant to expend sums of money to retrieve and repair the van, which failed to operate properly after being towed.
  1. Claimant's injurious violation of civil and due process rights was
caused by the negligent or intentional conduct of Trooper Rivera and negligent training and supervision of his superiors.
  1. Charges against Claimant were dismissed on November 30, 1994 by
Judge LaBuda, Mamakating Town Court, Wurtsboro, N.Y.
  1. Notice of Intention to file this claim was sent by certified U.S. mail
on December 12, 1994, and such claim remains unadjusted.
  1. This claim is filed within two years after the claim accrued as
required by law.

(Paper No. 1)


State's counsel affirms in pertinent part:

3. The claimant served a notice of intention to file a claim on the Office of the Attorney General on December 12, 1994. The original notice of intention to file a claim received by the Office of the Attorney General is attached as Exhibit A....

4. The claim was served on the Office of the Attorney General on September 16, 1996. Factually the allegations in the claim are very similar to what was alleged in the notice of intention to file a claim. In addition, in a very conclusory fashion the claim alleged the claimant's injuries were caused by the negligence of the defendant. A copy of the Notice of Claim and the envelope it was served in indicating the date it was received by the Office of the Attorney General are attached as Exhibit B.

5. On October 17, 1996, the defendant served its verified answer to the claim. The eighth and ninth affirmative defenses asserted in the verified answer allege the claim's untimeliness pursuant to the Court of Claims Act § 10. A copy of the verified answer is attached as Exhibit C.

6. The claim is untimely filed and must be dismissed. The claim for false arrest, or for the negligence theories of liability, would have accrued when the claimant was released from custody after being arrested or detained by the State Trooper. Both the notice of intention to file a claim and the claim allege the claimant was arrested on September 13, 1994 at 6:15 p.m., and was held for a period of two hours. Thus the claim would have accrued no later than September 13, 1994 at approximately 8:15 p.m.

7. The claimant did timely serve a notice of intention to file a claim on the Office of the Attorney General within 90 days of the claim's accrual. The timely and proper service of a notice of intention to file a claim extended the claimant's time to file and serve a claim until one (1) year after accrual for intentional torts, and two (2) years after accrual for claims of negligence. Court of Claims Act § 10(3); § 10(3-b). The claim was received by, or served on, the Office of the Attorney General on September 16, 1996, or more than two years after accrual. To be timely, any claim for false arrest would have had to have been served on or before September 13, 1995, and any claim for negligence on or before September 13, 1996. As such, both claims for false arrest and negligence of the defendant are untimely. The claim's untimeliness was raised with particularity in the verified answer's eighth and ninth affirmative defenses.

(Paper No. 4)



Although served, Claimant makes no response to this motion.


Court of Claims Act § 10 (3) provides:

A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, 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 two years after the accrual of such claim.

As the Claim accrued on September 13, 1994, service of the Claim upon the attorney general on September 16, 1996 was untimely. The filing requirements of the Court of Claims Act are jurisdictional and, therefore, must be strictly construed (see, Byrne v State of New York, 104 AD2 782). Defendant raised "objections" with particularity in its Verified Answer as required (Paper No. 2) (see, Court of Claims Act § 11 [c]; Uniform Rules for the Court of Claims, 22 NYCRR § 206.7 [a]). Therefore, the Claim must be dismissed.


In light of the foregoing, it is



ORDERED that the State's Motion No. M-61223 is GRANTED, and Claim No. 94748 is


dismissed


May 22, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims