Notice of Motion, Affirmation, with Exhibit 1,2
Notice of Cross-Motion, Affirmation, with Exhibit (Proposed Amended
Affirmation in Opposition (to Cross-Motion No. CM-68181) 5
In his claim, claimant seeks damages based upon allegations of unjust
conviction and imprisonment asserted under Court of Claims Act § 8-b. In
its motion (M-68118), defendant seeks dismissal of the claim on the basis that
claimant has failed to comply with the pleading requirements of that section.
Specifically, defendant contends that claimant has failed to set forth "facts in
sufficient detail to permit the court to find that claimant is likely to succeed
at trial" (Court of Claims Act § 8-b). Defendant further contends that
claimant has failed to allege the accrual date for this claim, as well as the
period of time that he was allegedly unlawfully confined.
In response to this motion, and apparently in an attempt to satisfy the
objections raised by defendant, claimant seeks permission to amend his claim,
and has submitted a proposed amended claim with his cross-motion (see Exhibit A
to Items 3,4).
In her affirmation in opposition to the cross-motion, defendant's attorney
apparently concedes that claimant has satisfied the pleading objections
originally set forth in the State's motion to dismiss, but that claimant has
still failed to allege a specific date of accrual and has not alleged a
definitive time period for the alleged wrongful confinement.
Under Court of Claims Act § 8-b, the Legislature has clearly evidenced an
intention to limit damages to confinement which has been imposed by a sentence
of imprisonment following conviction (see Vigliotti v State of New York
Ct Cl, June 21, 2004, Midey, J., Claim No. 106892-A, Motion No. M-68004 [UID No.
In his proposed amended claim,
claimant has properly alleged that this claim arose, and claimant began to
suffer damages on June 15, 1993, the date of his conviction.
With regard to the length of time of the alleged wrongful confinement, although
specifically not set forth in his proposed amended claim, such information
should be readily available through records maintained by the Department of
Correctional Services. Accordingly, defendant certainly cannot claim any
prejudice due to claimant's failure to have set forth a specific date of release
in the proposed amended claim, and such failure cannot be considered a
Accordingly, based on the foregoing, it is
ORDERED, that Motion No. M-68118 is hereby DENIED; and it is further
ORDERED, that Cross-Motion No. CM-68181 is hereby GRANTED; and it is
ORDERED, that claimant is hereby directed to serve his amended claim upon the
Attorney General either personally or by certified mail, return receipt
requested, and file his amended claim with the Clerk of the Court of Claims,
within 45 days from the date of the filing of this decision and order.