New York State Court of Claims

New York State Court of Claims

BETHEA v. THE STATE OF NEW YORK, #2004-019-542, Claim No. NONE, Motion No. M-68256


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: Michele M. Walls, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
May 10, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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 2004".[1] (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 application.

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 premature.

May 10, 2004
Binghamton, New York

Judge of the Court of Claims

The court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-68256, dated March 5, 2004, and filed March 26, 2004.
  2. Affidavit of Roosevelt Bethea, sworn to March 19, 2004, with attached exhibit.
  3. Proposed Claim, sworn to March 19, 2004.
  4. Affirmation of Michele M. Walls, AAG, in opposition to motion, undated, and filed April 16, 2004.
  5. Letter from Roosevelt Bethea to the Clerk of the Court, dated April 2, 2004, and received April 5, 2004.

[1]By way of letter to the court dated April 2, 2004, claimant advised that his release date was April 20, 2004. (Claimant's letter dated April 2, 2004).