New York State Court of Claims

New York State Court of Claims

MOORE v. THE STATE OF NEW YORK, #2004-032-069, Claim No. 108263, Motion Nos. M-68100, CM-68237


Defendant's cross-motion to dismiss the claim as being untimely is granted, and claimant's motion for summary judgment is denied as moot.

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:
Rodney Moore, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael C. Rizzo, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
September 21, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


According to the claim, on June 10, 2002, claimant, then an inmate at Barehill Medium Security Prison ("Barehill") in Malone, New York, reported to his assigned program at the prison grievance office where he was allegedly handed a piece of paper. Because he allegedly found the contents to be indiscernible, claimant tore up the piece of paper and threw it away. On June 11, 2002, claimant was placed in special housing unit ("SHU") pending an investigation, which resulted in claimant being charged with violating Rule 104.12 (Demonstration), 105.12 (Unauthorized Organizational Activities) and 180.11 (Facility correspondence violations). After a disciplinary hearing, claimant was found guilty of violating Rule 104.12, which prevents inmates from organizing. Claimant appealed this decision to the Commissioner of the Department of Correctional Services ("DOCS") which affirmed the hearing officer's decision. In October of 2002, claimant commenced an Article 78 proceeding raising questions concerning the sufficiency of the evidence relied upon in finding claimant guilty of Rule 104.12. This matter was eventually referred to the Appellate Division, Third Department. Before the Third Department could render a decision, the Attorney General advised the Court that the determination finding claimant guilty of violating Rule 104.12 had been administratively reversed and all references thereto expunged from claimant's institutional record. On July 17, 2003, the Third Department issued a decision dismissing claimant's petition as moot (see Matter of Moore v Goord, 307 AD2d 566 (3d Dept 2003).

In May of 2003, claimant filed an administrative grievance and, on July 21, 2003, he served on the Attorney General a notice of intention to file a claim for wrongful confinement (see notice of intention and certified mail receipt annexed to claimant's affidavit as Exhibit A). A claim was served on the Attorney General on August 29, 2003 (Moore affidavit, Exhibit B [claim and certified mail receipt]), and filed with the Court on September 11, 2003. Claimant now moves for summary judgment in his favor, essentially on the grounds that the defendant's affirmative defenses have no merit. Defendant cross-moves for summary judgment seeking to dismiss the claim as being untimely.

Because claimant has based his summary judgment motion on defendant's affirmative defenses and because defendant has cross-moved on these same defenses, the Court will initially address the cross-motion to dismiss the claim as untimely. In his motion papers, claimant alleges that his cause of action accrued on April 30, 2003, when the superintendent's hearing was administratively reversed "[d]ue to insufficient evidence to support charge"(Moore affidavit, Exhibit M).

Contrary to claimant's assertion, a cause of action for wrongful confinement or false imprisonment accrues upon release from confinement (Collins v McMillan,102 AD2d 860 [2d Dept 1984]; Boose v City of Rochester, 71 AD2d 59, 65 [4th Dept 1979]). Here, claimant was sent to the SHU on June 11, 2002, and remained there for 90 days, presumably being released on September 9, 2002. Pursuant to 10 (3-b) of the Court of Claims Act, a claim or a notice of intention to file a claim must be served on the Attorney General within 90 days of the accrual of a claim for an intentional tort. In this case, claimant had until December 8, 2002, 90 days after being released from the SHU, within which to commence his action. Because neither the notice of intention nor the claim were served on the Attorney General until July 2003, claimant's claim is untimely and is therefore dismissed.

Because this Court has granted defendant's cross-motion to dismiss the claim as untimely, it is not necessary for the Court to address claimant's motion for summary judgment which is denied as moot.

September 21, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read and considered by the Court:

1. Notice of motion no. M-68100 and supporting affidavit of Rodney Moore, pro se, with annexed copies of the notice of intention, claim, answer and other exhibits;

2. Notice of cross-motion no. CM-68237 and affirmation of Michael Rizzo, Esq., AAG in opposition to claimant's motion and in support of the cross-motion;

3. Reply to defendant's affirmation of Rodney Moore

Filed papers: claim, answer