New York State Court of Claims

New York State Court of Claims

DORSEY v. STATE OF NEW YORK, #2004-015-426, Claim No. 106831, Motion Nos. M-68747 , CM-68865


Court dismissed claim seeking damages for unlawful confinement due to claimant's failure to serve the claim within 90 days of accrual.

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:
Thomas Dorsey, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September10, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion to dismiss the claim for lack of jurisdiction on the ground that it was untimely filed is granted. Claimant's motion to strike certain affirmative defenses set forth in defendant's answer is denied as moot. The claim filed with the Court Clerk and served upon the Attorney General on October 25, 2002 seeks $111,200.00 in damages for alleged unlawful imprisonment between June 17, 2002 and February 18, 2003[1], mental anguish, physical injury to his left ankle from wearing a monitoring ankle bracelet and reimbursement of expenses for mandatory parole programs. In essence claimant alleges inter alia that he was confined by the Department of Correctional Services (DOCS) for a period in excess of his legal maximum sentence due to the Division of Parole's negligence in computing his jail time. Claimant previously sought to address the issue of his alleged unlawful confinement in a habeas corpus proceeding commenced in Supreme Court, Westchester County (Index No. 02-04653). That proceeding was dismissed as moot due to claimant's release from custody on July 17, 2002.

Claimant now moves for an order striking the following affirmative defenses set forth in the defendant's answer on the ground that they are without merit: First (governmental immunity), Second (good faith and legal justification), Third (collateral source limitation on recovery), Fourth (lack of jurisdiction - untimely service), Sixth (failure to exhaust administrative remedies), Seventh (lack of subject matter jurisdiction - ultra vires action by State employees), and Eighth (Statute of Limitations). The defendant cross-moves to dismiss the claim for lack of jurisdiction and for failure to state a cause of action.

The Appellate Division, Second Department succinctly held the following in Welch v State of New York, 286 AD2d 496, 497-498):
Pursuant to Court of Claims Act § 10, '[n]o judgment shall be granted in favor of any claimant' for personal injuries due to negligence, unintentional tort, or intentional tort of a State employee, unless a claim is filed and served upon the Attorney General within 90 days after the accrual of the claim, or the claimant, within 90 days after the accrual of the claim, serves upon the Attorney General a written notice of intention to file a claim therefor, and thereafter files and serves the claim upon the Attorney General within two years after the accrual of the claim (see, Conner v State of New York, 268 AD2d 706; Coleman v Webb, 158 AD2d 500). As a condition of the State's limited waiver of sovereign immunity, those requirements are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim (see, Alston v State of New York, 281 AD2d 741; Crair v Brookdale Hosp. Med Ctr., 259 AD2d 586, affd 94 NY2d 524; Phillips v State of New York, 237 AD2d 590; Voulgarelis v State of New York, 211 AD2d 675).

Even affording claimant the most favorable view of the facts alleged, his claim for excessive wrongful confinement accrued no later than July 17, 2002; the date of his release from custody. Claimant's failure to file his claim or a notice of intention within 90 days of July 17, 2002 (i.e., by October 15, 2002) was "a fatal jurisdictional defect requiring dismissal" (Coleman v Webb, 158 AD2d 500, 501). As a result, the defendant's cross-motion is granted and the claim is dismissed.

Dismissal of the claim for lack of jurisdiction renders moot claimant's motion to strike various defenses in the defendant's answer. The motion is therefore denied.

The trial scheduled for September 20, 2004 is cancelled.

September10, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 3, 2004;
  2. Affidavit of Thomas Dorsey sworn to July 3, 2004;
  3. Notice of cross-motion dated July 28, 2004;
  4. Affirmation of Saul Aronson dated July 28, 2004 with exhibits.

[1]The Court notes that the claim was dated October 22, 2002 and filed on October 25, 2002.