New York State Court of Claims

New York State Court of Claims

CANCEL v. THE STATE OF NEW YORK, #2002-032-019, Claim No. 106521, Motion No. M-65864


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:
Frankie Cancel, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Kathleen M. Resnick, Esq., Assistant Attorney GeneralOf Counsel
Third-party defendant's attorney:

Signature date:
December 18, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

The claim sets forth a cause of action for negligent loss of property and one or more causes of action for intentional torts. Defendant seeks dismissal of the intentional tort claims.

The events giving rise to this claim are detailed in the decisions relating to an Article 78 proceeding that claimant instituted to challenge a grievance determination of the Department of Correctional Services ("DOCS"). In the grievance, claimant had sought to compel the administration of Franklin Correctional Facility ("Franklin") to permit religious study and other benefits to Shi'a Muslims, separate and apart from Sunni Muslims. The grievance was denied but upon appeal, both the Supreme Court and the Appellate Division, Second Department held that that administrative decision was arbitrary and capricious and reversed, directing that inmates of the Shi'a Muslim faith be allowed to conduct their religious observances separate from those of the Sunni Muslim faith.[1]
The appellate decision was issued in December 2000 (Cancel v Goord, 181 Misc 2d 363, aff'd as modified 278 AD2d 321, lv denied 96 NY2d 707)
The instant claim arose in 2001. Based on rights that he contends were recognized in
Cancel v Goord (supra), claimant filed another institutional grievance against a Muslim chaplain when a representative of the Shi'a religion was denied the right to visit with inmates at Franklin. Thereafter, according to claimant, the chaplain began telling others of the grievance and trying to "stir up" trouble for claimant. On February 1, 2001, "[c]laimant received the response to the above mentioned grievance, and was taken to administrative segregation an hour or so later" (claim, ¶12). He alleges that this confinement was a reprisal for his having used the grievance procedure to enforce his rights (id, ¶17). Claimant remained in administrative segregation until March 7, 2001, when he was transferred to another facility.
This action was commenced by service of a notice of intention on April 11, 2001 (Resnick affirmation, ¶ 7). The claim was subsequently filed on August 19, 2002 and served on the Attorney General the following day. Defense counsel contends that any portion of the claim alleging intentional torts committed by State officers is untimely, as such claims must be filed within one year of the date of accrual (Court of Claims Act §3-b).

A claim for wrongful confinement that is based on allegations of ministerial negligence is considered to sound in negligence and thus is subject to the longer time limitation period contained in Court of Claims Act §10(3) (
Ramirez v State of New York, 171 Misc 2d 677). In the instant claim, however, it is evident that the cause of action is based on and alleges exclusively intentional conduct. Claimant refers to his first cause of action as an intentional tort (claim, ¶ 5), and he states that his confinement was brought about by the purposeful acts of the Muslim chaplain and other facility staff (id, ¶¶12, 13, 19). A claim for false imprisonment accrues when the injured party is released from confinement (Collins v. McMillan, 102 AD2d 860; Boose v. City of Rochester, 71 AD2d 59, 65), which occurred here on March 7, 2001. Even with a timely, properly served notice of intention, the claim had to be filed and served by March 7, 2002. Those portions of the claim alleging intentional torts, therefore, are untimely.
Claimant's effort to rely on CPLR 205(a) to extend his time for commencing the intentional tort claims is unavailing. That statute provides that a litigant may have six months in which to commence a new action based on the same transactions and occurrences as an earlier, timely action that is terminated for some reason other than voluntary discontinuance, lack of personal jurisdiction, failure to prosecute, or judgment on the merits. Claimant earlier commenced an action in Federal court, asserting the same causes of action set forth here, and this claim was commenced within six months after that action was dismissed for lack of subject matter jurisdiction. CPLR 205(a) does not apply and cannot extend a claimant's time to file an action in this Court. The various subdivisions of Court of Claims Act §10 do not establish general Statutes of Limitations but, rather, each provides a specific "statutory time restriction on commencement of suit" (
Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375, 378). The Court of Appeals held that CPLR 205(a) did not apply to extend the one year time limitation, contained in Unconsolidated Laws §7107, for commencing an action against the Port Authority. Under common law, the Port Authority, like the State, was protected from suit by the absolute immunity accorded the sovereign.
In a single enactment, the State not only consented to suits against Port Authority but also expressly incorporated within the act a requirement of timely suit as an integral part of its waiver of sovereign immunity. Where a statute both "creates a cause of action and attaches a time limit to its commencement, the time is an ingredient of the cause". In such situations, "the limitation of time is so incorporated with the remedy given as to make it an integral part of it, and the condition precedent to the maintenance of the action at all."

(Id, at 379 [citations omitted].) Thus, while CPLR 205(a) may extend a Statute of Limitations, it "could not obviate the requirements of a statutory condition precedent to suit" (id). In this Court, compliance with the time requirements of section 10 of the Court of Claims Act is similarly a statutory condition precedent to suit and CPLR 205(a) cannot extend the time in which claims must be commenced (accord, Carbone v State of New York, #2002-015-217, Claim No. 097853, Motion Nos. M-64143, CM-64239, Jan. 17, 2002, Collins, J.; see also, Tortorici v State of New York, #2002-019-531, Claim No. 104703, Motion No. M-64851, May 15, 2002, Lebous, J.; Johnson v State of New York, #2001-007-130, Motion No. M-63583, Sept 4, 2001, Bell, J.).
The Court notes that there are other problems with claimant's first cause of action. It appears that he is essentially challenging the reason and motives behind the decision to confine him. Such decisions are discretionary, quasi-judicial determinations on the part of prison officials and are absolutely immune from liability
(Arteaga v State of New York, 72 NY2d 212). In addition, to the extent that the claim could be read as asserting a cause of action for intentional infliction of emotional distress, it is equally well-settled, that public policy prohibits any recovery against the State for this tort (Wheeler v State of New York, 104 AD2d 496; DeLesline v State of New York, 91 AD2d 785, lv denied 58 NY2d 610).
Counsel for defendant does not seek dismissal of the claim's second cause of action for "negligent loss of property," which occurred when he was transferred from Franklin in March 2001, nor has the State raised an affirmative defense challenging the timeliness of this portion of the claim in its answer. The Court, therefore, is not required to – and does not – rule on the timeliness of this portion of the claim.

Defendant's motion is granted and claimant's first cause of action is dismissed. Claim No. 106521 shall continue only as to the second cause of action for property loss.

December 18, 2002
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion for partial summary judgment in its favor
  1. Notice of Motion and Supporting Affirmation of Kathleen M. Resnick, AAG, with annexed Exhibits.
  2. Affirmation in Opposition (none received)
Filed papers: Claim, Answer

  1. [1] The lower court had directed prison officials to allow the Shi'a Muslim inmates to have contact with a fully registered Shi'a scholar or, if one was not available, to permit the inmates to conduct a religious education class or study group once a week, pursuant to DOCS Directive No. 4202. That portion of the lower court decision was reversed, however, and the matter was remitted to DOCS to conduct administrative proceedings to determine the manner in which the inmates' rights could be exercised.