New York State Court of Claims

New York State Court of Claims

ORTIZ v. THE STATE OF NEW YORK, #2000-011-590, Claim No. 100725, Motion No. M-62403


Synopsis


Defendant's motion to dismiss the claim on the basis that it was not served within ninety days of accrual as required by Court of Claims Act §10 is granted.

Case Information

UID:
2000-011-590
Claimant(s):
JERMAINE ORTIZ
Claimant short name:
ORTIZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100725
Motion number(s):
M-62403
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Jermaine Ortiz, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Dennis M. Acton, Esq., of counsel)
Third-party defendant's attorney:

Signature date:
October 19, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendant has moved to dismiss the claim on the basis that it was not served within ninety days of accrual as required by Court of Claims Act §10.

Under Court of Claims Act §10 a claim based upon an intentional or unintentional tort must be filed within ninety days of accrual unless a notice of intention is filed within that time and then the claim may be filed within one or two years of accrual.

The claim arises from an incident that is alleged to have occurred on July 13, 1998 when Claimant was confined to his cell after being issued an inmate misbehavior report. Claimant was found guilty of the charges and a punishment of 120 days cell confinement, 120 days loss of phone privilege, commissary, packages, recreation and special events and recommendation of four months loss of good time was imposed. The finding of guilt was administratively reversed on April 14, 1999. The notice of intention was served on June 30, 1999. The claim was received by the Attorney General on July 15, 1999.

If the date of accrual was April 14, 1999 the claim would be timely. However, the claim does not allege the elements of any cause of action such as false imprisonment or malicious prosecution which might have accrued on that date. Claimant has not pleaded facts demonstrating an absence of privilege for the confinement, malice or a favorable termination (see, Broughton v State of New York, 37 NY2d 451; see also, Arteaga v State of New York, 72 NY2d 212, in matters of inmate discipline State is entitled to presumption of absolute immunity).

Inasmuch as neither the notice of intention or the claim were served within ninety days of accrual, the claim is untimely. The court, therefore, is without personal jurisdiction and accordingly, the motion is granted and the claim is dismissed.

October 19, 2000
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims


Papers Submitted:

  1. Notice of Motion to Dismiss dated September 19, 2000.
  2. Affidavit in Support of Dennis M. Action, Esq., sworn to the 19th day of September, 2000 with exhibits annexed.
  3. Unsworn letter of Claimant dated September 22, 2000.