Claimant, an inmate appearing pro se, moves for permission to file a late claim
pursuant to Court of Claims Act ("CCA") 10 (6). The defendant State of New York
(hereinafter "State") opposes the motion.
Claimant seeks to file a late claim for unlawful imprisonment based upon the
State's failure to properly calculate his maximum expiration date. On October
16, 2003, claimant indicates that he was sentenced to time served for attempted
assault with the understanding that his sentence of time served would run
concurrent with his parole. (Proposed Claim, ¶ 4). Claimant alleges that
his proper maximum expiration date was October 29, 2003. When claimant was not
released on said date his subsequent inquiries revealed that the State had
recalculated his maximum expiration date to run consecutively with the sentence
of time served, rather than concurrently. Claimant was advised that his new
maximum expiration date would be in "April
(Proposed Claim, ¶ 5). Claimant
argues that the State has refused to correct this error even after he notified
them of the mistake. By way of this motion, claimant seeks permission to file
a late claim based upon unlawful imprisonment due to the State's failure to
comply with Penal Law 70.25 and 70.30 and its failure to properly train its
employees. (Proposed claim, ¶ 2).
The threshold issue on any late filing application is whether the court has the
jurisdiction to review and determine this motion. In this instance, a review of
this issue reveals claimant's application is not late, but rather premature. A
claim for wrongful excessive confinement in a prison setting, which is a species
of the tort of false imprisonment, accrues on the date of release from
confinement. (Broughton v State of New York, 37 NY2d 451, cert denied
sub nom. Schanbarger v Kellogg, 423 US 929; Collins v
McMillan, 102 AD2d 860). At the time claimant filed this motion with the
Clerk of the Court on March 26, 2004 he was still imprisoned. As such, any
claim for unlawful imprisonment had not yet accrued and his motion seeking
permission to file such a claim is premature.
Claimant subsequently advised the court in a letter that he was due to be
released on April 20, 2004. (Claimant's letter dated April 2, 2004). Assuming
claimant was released on April 20, 2004 he has ninety days from that date which
is July 19, 2004 to either serve a notice of intention or file and serve a claim
in accordance with the provisions of CCA 10 and 11. In sum, claimant's current
motion for permission to file a late claim is premature and it appears he has
time remaining to serve a notice of intention or file and serve a claim in
accordance with the provisions of CCA 10 and 11 without the need for court
permission. As such, the court need not reach the merits of this
Accordingly, for the reasons stated above, it is ORDERED that the claimant's
motion for permission to file a late claim, Motion No. M-68256, is DENIED as
Notice of Motion No. M-68256, dated March 5, 2004, and filed March 26,
Affidavit of Roosevelt Bethea, sworn to March 19, 2004, with attached
Proposed Claim, sworn to March 19, 2004.
Affirmation of Michele M. Walls, AAG, in opposition to motion, undated, and
filed April 16, 2004.
Letter from Roosevelt Bethea to the Clerk of the Court, dated April 2, 2004,
and received April 5, 2004.