New York State Court of Claims

New York State Court of Claims

CULBREATH v. THE STATE OF NEW YORK, #2003-019-578, Claim No. 108338, Motion Nos. M-67678, CM-67738


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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
December 19, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for an order striking the affirmative defenses contained in the State's Verified Answer. The defendant State of New York (hereinafter "State") opposes said motion and cross-moves for dismissal.

Claimant alleges he was wrongfully confined to special housing units at Elmira Correctional Facility and Southport Correctional Facility for 210 days between November 21, 2002 through June 19, 2003, the date of his release back into the general population. This claim was served on the State on August 25, 2003 and filed with the Clerk of the Court on September 29, 2003. The State filed a Verified Answer on September 26, 2003 containing five affirmative defenses.

The State's five affirmative defenses include the following: (1) lack of personal jurisdiction based upon service by certified mail, but without return receipt service; (2) lack of jurisdiction based upon untimely filing of the claim within 90 days pursuant to CCA 10; (3) entitlement to immunity from liability; (4) defendant's actions were justified and based upon probable cause; and (5) defendant acted in good faith warranting only nominal damages, if any.

The court will address the State's second affirmative defense since it is dispositive of the issues presented.[1] The State's second affirmative defense alleges a want of jurisdiction because claimant failed to timely file his claim with the Clerk of the Court within 90 days after accrual pursuant to CCA 10. In his papers seeking to strike this affirmative defense, claimant concedes that this claim was not timely filed, but argues that the State has not been prejudiced by such late filing since it received timely and proper service of the claim within the 90-day statutory period. (Claimant's Affidavit in Support, ¶ 3).

Despite claimant's arguments to the contrary, it is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in the CCA are jurisdictional in nature and must be strictly construed. (CCA 11; Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). This claim accrued on June 19, 2003, the date of claimant's release from confinement. (Ramirez v State of New York, 171 Misc 2d 677). It is undisputed that this claim was filed with the Clerk of the Court on September 29, 2003 which is more than 90 days from said date of accrual. As such, this claim is untimely and must be dismissed. Without passing judgment on the merits of any future application, claimant may not be without a remedy, however, since it appears he is within the time period to request permission to file a late claim pursuant to CCA 10 (6).

Accordingly, for the reasons stated above, it is ORDERED that the State's cross-motion, CM-67738, is GRANTED and Claim No. 108338 is DISMISSED. Claimant's motion, Motion No. M-67678, is DENIED as moot.

December 19, 2003
Binghamton, New York

Judge of the Court of Claims

The Court considered the following papers in connection with these motions:
  1. Claim, filed September 29, 2003.
  2. Verified Answer, September 26, 2003.
  3. Notice of Motion No. M-67678, dated October 10, 2003, and filed October 17, 2003.
  4. Affidavit of Jeffrey M. Culbreath, in support of motion, sworn to October 10, 2003, with attached exhibit.
  5. Notice of Cross-Motion No. CM-67738, dated December 5, 2003, and filed December 8, 2003.
  6. Affirmation of Joseph F. Romani, AAG, in support of cross-motion and in opposition to motion, dated December 5, 2003, with attached exhibits.
  7. Memorandum of Law in support of cross-motion and in opposition to motion, dated December 5, 2003.
  8. Supplemental Affirmation of Joseph F. Romani, AAG, in support of cross-motion and in opposition to motion, dated December 15, 2003, and filed December 17, 2003.
  9. Affidavit of Jeffrey Culbreath, in opposition to cross-motion, sworn to December 12, 2003, and filed December 19, 2003, with attached exhibit.

[1]Claimant's moving papers address the merits of the State's second affirmative defense. Additionally, the State raised this issue in the Verified Answer with particularity and, as such, the court has accepted the State's supplemental affidavit relative to this issue. (CCA 11 [c]).