3. Filed Papers: Claim
This claim arose August 9, 2001, at Albion Correctional Facility, where
Claimant was incarcerated. It is alleged that on that date, Claimant was
assaulted, raped and sodomized by Correction Officer Dean Schmidt. The claim
sets forth six causes of action.
The first, fourth, and sixth causes of action are brought pursuant to 42 USC
§1983 and allege various violations of rights guaranteed by the United
States Constitution. It is well-established that sovereign States are not
"persons" amenable to suit under 42 USC §1983 (Will v Michigan Dept. of
State Police, 491 US 58). Consequently, these three causes of action will
be dismissed without further discussion.
Claimant's second cause of action alleges that the State is vicariously liable
for the officer's negligent and tortious action against Claimant. The third
cause of action alleges that the State was negligent in its training,
supervision and/or discipline of both the officer and the Superintendent of
Albion. The fifth cause of action contains similar allegations with respect to
the hiring and retention of Correction Officer Schmidt and also alleges that
this officer had been the subject of prior complaints of misconduct (Claim,
Defendant has moved to dismiss this claim, which is now reduced to these three
causes of action, on several grounds, including that of untimeliness. The
claim accrued on August 9, 2001, and, pursuant to Section 10(3) (negligence and
unintentional torts) and/or Section 10(3-b) (intentional torts) of the Court of
Claims Act, a notice of intention had to be served or a claim had to be filed
and served within 90 days after that date, or by November 7, 2001. Claimant
served the Attorney General with a notice of intention to file a claim on
November 8, 2001 (Zimmermann Affirmation, Exhibit A), which counsel acknowledges
was the ninety-first day after the claim's accrual (id., ¶24,
¶27). The claim was subsequently filed and served in August 2002.
Claimant contends that the claim should not be dismissed, however, because the
one day's untimeliness is de minimis and, in addition, because copies of
the notice of intention were served in a timely fashion, on November 7, 2001, on
Correction Officer Schmidt and on the Superintendent of Albion Correctional
Facility (id., Exhibit B).
Section 11(a) of the Court of Claims Act requires that a copy of a claim or a
notice of intention must be served on the Attorney General, and consequently
service on another State officer will not suffice to give this Court
jurisdiction over the Defendant State of New York. In addition, failure to
comply with the time or manner of service requirements contained in Sections 10
and 11 of the Court of Claims Act is a fatal jurisdictional defect and deprives
this Court of the power to hear the claim (Dreger v New York State Thruway
Auth., 81 NY2d 721; Bogel v State of New York, 175 AD2d 493). Even
those claims that miss the filing or service deadlines by only one day must be
dismissed (Dependable Trucking Co. v New York State Thruway Auth., 41
AD2d 985; Matter of Marshall v State of New York, 144 Misc 2d 193).
Counsel for Claimant did not cross-move for permission to file an untimely
claim pursuant to Court of Claims Act §10(6) but, rather, merely added a
request for such relief within his affirmation in opposition to the motion to
dismiss (Zimmermann Affirmation, ¶¶31-43). Section 10(6) of the
Court of Claims Act now expressly requires that application for the relief
provided by that subdivision "shall be made upon motion" (L 2001, ch 205,
§1, as amended).
Absent service and filing of a notice of motion or order to show cause seeking
late claim relief, the Court is powerless to grant claimants' request for such
relief (see, Court of Claims Act §10 (6); Sciarabba v State of
New York, 152 AD2d 229). A request for late claim relief included in one's
opposition to a motion for summary judgment, even if the §10 (6) statutory
factors are addressed, is insufficient to place the application before the Court
(Bullard v State of New York
, Ct Cl, April 18, 2002, [Claim No. 103138,
Motion Nos. M-64624, M-64630], MacLaw No. 2002-015-237, Collins,
Likewise, a request for late claim
relief that, as in this instance, is included in Claimant's papers opposing a
motion for dismissal is insufficient to place the application before the Court.
Defendant's motion is granted, and the claim is dismissed.