New York State Court of Claims

New York State Court of Claims

SMALL v. THE STATE OF NEW YORK, #2000-019-019, Claim No. 96889, Motion No. M-61958


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):

Claimant's attorney:
Defendant's attorney:
BY: Belinda Wagner, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
August 17, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, an inmate appearing
pro se, seeks compensation for his alleged wrongful disciplinary confinement and loss of visiting privileges during his incarceration at Shawangunk Correctional Facility (hereinafter "Shawangunk"). A trial was held on July 11, 2000 at Sullivan Correctional Facility.

The State of New York (hereinafter "State") moved for an order dismissing the claim pursuant to CPLR 3211 (a) on jurisdictional grounds (Motion No. M-61958). Due to the last minute timing of the State's motion, the Court advised both parties in writing that the motion would be returnable at trial. This Decision will dispose of both the trial and the motion.

The facts are essentially undisputed. This Claim arises from a drug test conducted by the Department of Correctional Services (hereinafter "DOCS") on Claimant upon his return from a Family Reunion Program visit with his father and sister on October 15, 1994. The drug test results proved positive for cocaine. After a disciplinary hearing, Claimant was found guilty and sentenced to 90 days in confinement and a loss of visiting privileges. Claimant was released from confinement "on January 16, 1995".[1]
On June 4, 1996, following administrative review and Claimant's commencement of an Article 78 proceeding, the Commissioner of Corrections directed that Claimant's guilty finding be administratively reversed. By way of this action, Claimant seeks compensation for his wrongful confinement for 90 days and loss of privileges.

A Notice of Intention was served on the Attorney General's office on or about July 25, 1996 by certified mail, return receipt requested. The Claim was served on the Attorney General's office on August 29, 1997. The Claim was filed in the Office of the Clerk on September 2, 1997.

The State's Verified Answer was filed in the Office of the Clerk on October 7, 1997. The Court finds the State pleaded the defense of untimeliness, with sufficient particularity, in its Verified Answer to preserve the issue for review by way of motion. (Court of Claims Act [hereinafter "CCA"] 11 [c]).
The State's motion to dismiss contends Claimant failed to file or serve a timely claim or timely serve a notice of intention pursuant CCA 10 & 11. The State further argues that "[h]ere, the occurrence alleged in the claim to have caused injury accrued no later than the imposition of disciplinary finding in November of 1994 and consequential punishment resulting therefrom." (Affirmation of Saul Aronson, AAG, ¶ 6). In opposition, Claimant argues the proper date of accrual is June 4, 1996 which is the date the Commissioner of Corrections administratively reversed his conviction.[2]
The Court disagrees with the positions of both the parties. It is well-settled that a cause of action premised upon wrongful confinement accrues when the confinement ends. (Ramirez v State of New York, 171 Misc 2d 677, 680). Here, Claimant represented his release date was January 16, 1995. Thus, Claimant had 90 days from that date or until April 16, 1995 to either serve a notice of intention on the Attorney General's office or to file and serve a claim pursuant to CCA 10 & 11. However, Claimant did not serve his Notice of Intention until July 25, 1996 or serve and file the Claim until August 29, 1997 and September 2, 1997, respectively, all of which were well beyond the statutory ninety day period. It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in CCA 10 & 11 are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). Consequently, the State's motion to dismiss on which the Court reserved at trial is now granted and this Claim is dismissed.

The Court considered the following papers in connection with the motion:
  1. Notice of Motion No. M-61958, dated June 26, 2000 and filed June 29, 2000.
  2. Affirmation of Saul Aronson, AAG, in support of motion, dated June 26, 2000, with attached exhibits.

Accordingly, for the reasons stated above, State's motion to dismiss, Motion No. M-61958, is GRANTED and Claim No. 96889 is DISMISSED.


August 17, 2000
Binghamton, New York

Judge of the Court of Claims

Unless otherwise indicated, all quotes are from the Court's trial notes.
[2]Claimant asserted at oral argument that federal case law permits him up to three years from the date of reversal to commence his action. Claimant's reliance on Hynes v Drake, 111 F3d 283 [2d Cir 1997] and Black v Coughlin, 76 F3d 72 [2d Cir 1996]) is misplaced. The State accurately noted that both cases involved actions alleging denial of due process premised upon 42 USC § 1983. Claimant did not plead due process violations of 42 USC § 1983 nor could he have in this venue. (Cavanaugh v Doherty, 243 AD2d 92).