New York State Court of Claims

New York State Court of Claims

MCNULTY v. WILLARD CORRECTIONAL FACILITY (WDTC) AND NEW YORK STATE DIVISION OF PAROLE MONROE COUNTY ROCHESTER NEW YORK, #2001-005-535, Claim No. 103826, Motion No. M-63443


Synopsis


The claim is untimely filed and dismissal is required. The papers before the Court, and not on notice to Defendant, do not properly raise entitlement for a legal disability under the Court of Claims Act §10(5).

Case Information

UID:
2001-005-535
Claimant(s):
TIM MCNULTY 99-B-0408WATERTOWN CORRECTIONAL FACILITY
Claimant short name:
MCNULTY
Footnote (claimant name) :

Defendant(s):
WILLARD CORRECTIONAL FACILITY (WDTC) AND NEW YORK STATE DIVISION OF PAROLE MONROE COUNTY ROCHESTER NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103826
Motion number(s):
M-63443
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Tim McNulty,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Christopher Wiles, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 23, 2001
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On August 15, 2001, the following papers, numbered 1 to 4, were read on motion by Defendant for dismissal of the claim:

1, 2 Notice of Motion, Affirmation and Exhibit Annexed
  1. Claimant's Letter received May 9, 2001 w/ Exhibits
  2. Filed Papers: Claim
Upon the foregoing papers, this motion is granted.

In lieu of an answer, the Defendant seeks to dismiss the claim herein on the ground that it was untimely served. The Defendant alleges, without refutation, that it was served with the claim on March 16, 2001. The claim, which was filed on February 13, 2001, alleges personal injury to the Claimant at the Willard Correctional Facility (Willard) "about late May or early June of 1999" when a ramp upon which Claimant was standing allegedly collapsed. In the claim itself, Claimant also asserts that he was told that if he filed a claim he could not complete the program at Willard, and that later, upon his release from Willard to parole, he was told by his parole officer in Monroe County, that he would be "violated" if he filed a claim.

The Defendant seeks dismissal on the ground that service of the claim was untimely, in contravention of the service requirements of Court of Claims Act §10(3), which requires such service and filing within 90 days of accrual of the cause(s) of action. Here, the latest possible date of accrual was June 1999, and thus service on March 16, 2001 was well-beyond the 90 day period, depriving the Court of jurisdiction. The Defendant also notes that Claimant did not serve a Notice of Intention to file a claim, which would have allowed a period of up to two years from accrual to serve and file a claim (Court of Claims Act §10[3]).

In opposition to the motion, Claimant sent a letter to the Court with numerous attachments appended thereto, purporting to demonstrate that he suffers from a mental disorder, to wit, bipolar disorder. He requested an adjournment of the motion so that he could obtain legal counsel after his release from prison. I granted that request, and adjourned the motion to August 15, 2001, and indeed sent a copy of my letter to two attorneys whose names were given to me by Claimant as individuals who might appear on his behalf. Despite the extended adjournment which I granted, no additional correspondence or appearances on Claimant's behalf have been made, either from Claimant or any attorney.

Accordingly, the motion is deemed submitted. Claimant's putative excuse for failing to timely serve or file a claim is noted in his claim as threats to remove him from a program at Willard or to violate his parole. In his letter to the Court however, Claimant seems to rely totally upon a mental condition. Court of Claims Act §10(5) does permit an extension of up to two years for someone "under a legal disability." While bipolar disorder, a manic-depressive illness, has been held to possibly make a toll available pursuant to Court of Claims Act §10(5) (See Wheeler v State of New York, 104 AD2d 496, 498), that decision addresses the release of that claimant's psychiatric and clinical records to allow a review of a dismissal motion (also see, Bowles v State of New York, 208 AD2d 440).

In the posture of the present pleadings and papers before me, while there is an implication that Claimant may have entitlement to a legal disability under §10 (5), no formal application for such status has been made, and certainly not on notice to the Defendant. I note that Claimant failed to supply copies of his correspondence and exhibits (Paper #3 above) to the Defendant. Furthermore, the purported excuses for the late filing and service contained within the claim does not address §10(5), and address alleged threats were Claimant to have filed. Those circumstances might be reviewable in a late claim application under §10(6), but do not apply to any potential legal disability, as contemplated in §10(5).

In any event, by granting the Defendant's motion to dismiss here, as the claim is clearly untimely, Claimant's rights are still protected. If Claimant is entitled to any relief pursuant to §10(5), he has two years from the removal of his disability to make a proper application to the Court, on notice to the Defendant. If he is not suffering from such disability, then he is not entitled to consideration of §10(5) and the untimeliness noted above would not be tolled, and dismissal on that basis is required.

The motion is granted and the claim is dismissed.

October 23, 2001
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims