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
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
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
The court will address the State's second affirmative defense since it is
dispositive of the issues presented.
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.
Claim, filed September 29, 2003.
Verified Answer, September 26, 2003.
Notice of Motion No. M-67678, dated October 10, 2003, and filed October 17,
Affidavit of Jeffrey M. Culbreath, in support of motion, sworn to October 10,
2003, with attached exhibit.
Notice of Cross-Motion No. CM-67738, dated December 5, 2003, and filed December
Affirmation of Joseph F. Romani, AAG, in support of cross-motion and in
opposition to motion, dated December 5, 2003, with attached exhibits.
Memorandum of Law in support of cross-motion and in opposition to motion, dated
December 5, 2003.
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,
Affidavit of Jeffrey Culbreath, in opposition to cross-motion, sworn to
December 12, 2003, and filed December 19, 2003, with attached exhibit.