New York State Court of Claims

New York State Court of Claims

HERRING v. THE STATE OF NEW YORK, #2000-007-037, Claim No. 96484, Motion No. M-61552


Defendant moved to dismiss as untimely a claim alleging false imprisonment. The court held that the claim accrued for purposes of Court of Claims Act § 10 when claimant was released from incarceration. Motion denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

John L. Bell
Claimant's attorney:
Leighton M. Jackson, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General
(Saul Aronson, Esq., Assistant Attorney General,of Counsel)
Third-party defendant's attorney:

Signature date:
July 7, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has made an application for an order dismissing the claim upon the ground that the court lacks jurisdiction.[1] The return date of the motion was June 21, 2000. The following papers were read and considered by the court:

Notice of Motion, Affirmation of Saul Aronson,
Esq., Annexed Exhibits 1, 2, 3

Notice of Cross-Motion, Affirmation of

Leighton M. Jackson, Esq., Annexed
Exhibits 4, 5, 6

Reply Affirmation of Saul Aronson, Esq. 7

Filed Papers: Claim, Answer, Amended
Answer 8, 9, 10

Claimant alleges that he was unlawfully incarcerated after the expiration of his maximum prison sentence. In the current motion, defendant argues that neither a notice of intention nor a claim was filed within 90 days of accrual and therefore that the court lacks jurisdiction. The dispositive issue is whether the claim accrued for purposes of Court of Claims Act § 10 at the expiration of claimant's maximum sentence or when claimant was released from incarceration.

In May 1991, claimant was sentenced to an indeterminate term of imprisonment of one-and-a-half to four-and-a half years for attempted robbery in the second degree. He alleges that the maximum expiration date for his sentence was October 6, 1995.[2] Claimant was twice released on parole and then returned to the custody of the Department of Correctional Services. According to claimant, the second time he was returned to custody was on October 15, 1995, which was beyond the maximum expiration date of his sentence. Claimant sought relief via a writ of habeas corpus in April 1996 and defendant purportedly acknowledged that claimant's sentence had expired. Claimant was released from prison on May 8, 1996. A notice of intention was served on June 17, 1996, and a claim was filed on June 25, 1997 and served on June 30, 1997.[3]

The court is not convinced by defendant's contention that the notice of intention was not served within 90 days of accrual.[4] Courts have consistently held that the time-period for commencing actions premised upon unlawful confinement does not start running until the confinement ceases (see, e.g., Matter of Ragland v New York City Hous. Auth., 201 AD2d 7, 9; Boose v City of Rochester, 71 AD2d 59, 65; Ramirez v State of New York, 171 Misc 2d 677, 680; Karen v State of New York, 111 Misc 2d 396, 397-398). No authority or argument has been presented to justify a departure from the plethora of precedent pointing to the release date as the mark to be used when calculating whether the claim was timely. Here, claimant was released from incarceration on May 8, 1996. He served a notice of intention on June 17, 1996, which was well within the 90-day time limitation.

Defendant's motion is denied.

The return date of claimant's motion for summary judgment is set as August 2, 2000.

July 7, 2000
Plattsburgh, New York

Judge of the Court of Claims

[1] Claimant filed a cross-motion for summary judgment. Defendant requested that its motion to dismiss be decided separate from and prior to claimant's motion for summary judgment. Claimant agreed to such request and the court will thus initially decide the motion to dismiss.
[2] Although his claim asserted earlier expiration dates, his bill of particulars alleges and his position in the current motion is that the maximum expiration date was October 6, 1995.
[3]Defendant's motion to amend its amended answer to add an affirmative defense alleging failure to comply with the one-year Statute of Limitations for an intentional tort was previously denied in a Memorandum Decision and Order by Judge Benza (Herring v State of New York, Ct Cl, Aug. 24, 1998 [Claim No. 96484, Motions No. M-57791, CM-57850], Benza, J.).
[4] Defendant's argument that the claim accrued on October 6, 1995 is devoid of merit for a factual reason. Claimant was still on parole on October 6. He did not return to custody until October 15, 1995. The court recognizes, however, that the intent of defendant's argument is that the claim accrued when claimant was first subjected to imprisonment past the maximum expiration date.