New York State Court of Claims

New York State Court of Claims

VIGLIOTTI v. THE STATE OF NEW YORK, #2002-009-44, Claim No. NONE, Motion No. M-64369


Synopsis


Claimant's application to serve and file a late claim was denied. The Court found that the late claim provisions under Section 10(6) of the Court of Claims Act were not applicable to causes of action arising under the "Unjust Conviction and Imprisonment Act", but that claimant could still timely file a claim, without leave of Court, under Section 8-b of the Court of Claims Act.

Case Information

UID:
2002-009-44
Claimant(s):
JACK VIGLIOTTI
Claimant short name:
VIGLIOTTI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-64369
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
JACK VIGLIOTTI, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 30, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks permission to file a late claim pursuant to Court of Claims Act, § 10(6).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Motion for Permission to File a Late Claim (unsworn), Proposed Claim

1,2,3


Affirmation (in Opposition) 4

"Opposition Motion" (Reply from Claimant), with Exhibits 5


Poor Person Application 6

Claimant seeks leave to serve and file a late claim seeking damages pursuant to § 8-b of the Court of Claims Act, known as the "Unjust Conviction and Imprisonment Act". The claim is based upon the unanimous reversal by the Appellate Division, Fourth Department, of claimant's prior conviction in Onondaga County Court, following a jury trial, for the crime of bail jumping in the first degree (Penal Law, § 215.57). The order of the Appellate Division, Fourth Department, was entered November 13, 2000 (People v Vigliotti, 277 AD2d 890; lv denied 95 NY2d 970).

In addition to his claim for relief under § 8-b of the Court of Claims Act, claimant also seeks damages for: (1) violation of due process rights guaranteed by the State Constitution, (2) malicious prosecution, (3) abuse of process, and (4) prima facie tort, all of which are based upon this conviction for bail jumping and subsequent reversal thereof.

Prior to a consideration of this application under § 10(6) of the Court of Claims Act, the Court notes that claims arising under the "Unjust Conviction and Imprisonment Act" may be filed within two years after the dismissal of an accusatory instrument (Court of Claims Act, § 8-b[7]), without requesting and obtaining permission of the Court. The service and filing requirements of § 10 of the Court of Claims Act have no application to claims arising under § 8-b and as a result, late claim relief pursuant to § 10(6) is not applicable to claims asserted under § 8-b (Hernandez v State of New York, 158 Misc 2d 232) .

However, it appears that the time period within which claimant may bring a claim under Court of Claims Act, § 8-b has not expired. Since claimant's conviction was reversed and his indictment was dismissed by the Appellate Division, Fourth Department, on November 13, 2000, claimant's cause of action for unjust conviction still appears viable and may be filed by him, without leave of court. Claimant's application, therefore, for late claim relief permitting him to serve and file a claim for unjust conviction under § 8-b is therefore both unnecessary and without legal basis. As noted above, however, claimant has also asserted four additional causes of action, all of them based upon claimant's alleged wrongful conviction. Again, prior to a consideration of this application under § 10(6), the Court must note that the service and filing requirements for intentional torts are governed by § 10(3-b) of the Court of Claims Act. This section requires a claim to be served and filed within 90 days after accrual, unless a notice of intention to file a claim is served within such time, in which event the claim must be served and filed within one year after accrual of the claim. According to the papers submitted with this motion, no notice of intention to file a claim was served by claimant.

Furthermore, pursuant to the requirements of § 10(6), any application seeking late claim relief must be brought "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." Intentional torts are governed by the provisions of CPLR § 215, which requires any such action to be commenced within one year from the date of accrual. In this matter, the reversal of claimant's conviction and dismissal of the indictment against him, which provides the basis for his claim, occurred on November 13, 2000. Claimant's application for a late claim, however, was not served by mail upon the Attorney General until at least November 26, 2001 (see Affidavit of Service attached to Items 1,2,3) and was not received and filed by the Clerk of the Court of Claims until November 28, 2001. Since claimant's application for late claim relief was not made within one year of the accrual of his claim, the statute of limitations for the intentional torts of malicious prosecution, abuse of process, and prima facie tort has expired. Accordingly, since any claim alleging these causes of action is jurisdictionally defective, there is no basis on which this Court may grant late claim relief.

The statute of limitations for a constitutional tort, however, has been determined to be three years (Brown v State of New York, 250 AD2d 314). Even though this Court clearly has jurisdiction to hear and consider such claims, claims alleging the violation of a State constitutional right have only been allowed under a narrow set of circumstances (Augat v State of New York, 244 AD2d 835, lv denied 91 NY2d 814). Where the claim for a violation of constitutional rights can also be remedied by an action under an alternative theory, a due process claim must be rejected (Remley v State of New York, 174 Misc 2d 523). It is only where the protections provided by the due process provision would be jeopardized that the Court should allow a constitutional tort cause of action in lieu of a traditional tort remedy. In this case, and as previously noted, claimant may still bring an action under § 8-b of the Court of Claims Act, and he has not been precluded from seeking such relief. Accordingly, the Court finds that the proposed claim set forth herein does not contain such allegations that meet the narrow criteria for the allowance of a constitutional tort claim.

Accordingly, although the Court must deny claimant's application for late claim relief in its entirety, claimant is advised that he still appears to have available a viable cause of action for unjust conviction under § 8-b of the Court of Claims Act. Even though permission from this Court is not required before instituting such a claim, claimant is cautioned that any such claim must be served and filed within two years of accrual. Furthermore, and as previously noted herein, should he elect to pursue such a claim, late claim relief under § 10(6) of the Court of Claims Act is not and will not be available to claimant if it is not timely served and filed.

Based upon the determinations made herein, claimant's application for poor person relief is premature, and is therefore denied for that reason.

Accordingly, for the reasons set forth above, it is

ORDERED, that Motion No. M-64369 is hereby DENIED.



September 30, 2002
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims