This claim alleges that while claimant Raul Lopez Maldonado was incarcerated at
Upstate Correctional Facility he was unlawfully confined for 28 days in a
Special Housing Unit (claim ¶ 2). He asserts that defendant State of New
York negligently failed to release him from SHU on or about the 19th day of
September 2000 (id.
, ¶ 4). He was released on October 2, 2000
In addition, claimant
alleges that on September 27, 2000, while he was still in SHU, he fell from his
bunk and fractured his right ring finger (claim, ¶5).
Defendant now moves to dismiss the claim arguing that since the notice of
intention was served by first class mail, as opposed to certified mail, return
receipt requested as required by Court of Claims Act §11(a), claimant did
not extend his time to serve and file the claim (Acton affirmation, ¶¶
2-3, attachment). Consequently, defendant asserts, because the claim was not
served until December 20, 2000 – which is 92 days after claimant should
have been released from SHU – it is untimely. Claimant has not responded
to the State's motion.
Failure to comply with the time or manner of service requirements contained in
sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect
and, if properly raised by defendant in its answer or in a pre-answer motion,
deprives this Court of the power to hear the claim (Dreger v New York State
Thruway Auth., 81 NY2d 721, 724; Bogel v State of New York, 175 AD2d
493). Despite the facts that this defense was sufficiently stated in the answer
and the fact that claimant has failed to respond to the motion, after a review
of the filed papers the Court is unable to determine as a matter of law that
this claim was untimely.
The negligence cause of action for the injury to claimant's finger accrued on
September 27, 2000. To be timely, a claim would have to be filed and served, or
a notice of intention served, on or before December 26, 2000. Claimant did
effect timely service with respect to this cause of action, serving the Attorney
General on December 20, 2000. He did not, however, file the claim in a timely
fashion, as it arrived at the Clerk's office on January 9, 2001. Unless a notice
of intention is employed, both filing and service must occur within the
applicable section 10 time period in order for a claim to be properly commenced.
On the other hand, section 11(c) of the Court of Claims Act requires that
defendant raise the affirmative defenses of untimeliness or improper service
with sufficient particularity or those defenses are waived. In the State's
answer, the first affirmative defense asserts that the claim was untimely
served but there is no mention of the timeliness or untimeliness of the
filing. Because the Chief Clerk of this Court serves on the Attorney General a
copy of each acknowledgment letter that is sent to a claimant, defense counsel
would, or easily could, be aware of the date of filing. Inasmuch as defendant
failed to raise the defense of untimely filing in its answer, that defect is
With respect to the claim for wrongful confinement, although claimant assumes
that the cause of action would accrue on the day the State failed to release him
from SHU, it in fact did not accrue until his damages were reasonably
ascertainable, that is, until his release (see Collins v McMillan,
102 AD2d 860; Whitmore v City of New York, 80 AD2d 638; Boose v City
of Rochester, 71 AD2d 59; Karen v State of New York, 111 Misc 2d
396; see also 59 NY Jur 2d False Imprisonment and Malicious Prosecution,
§ 118). This cause of action, therefore, accrued on October 2, 2000, and
the 90th day after October 2, 2000 is December 31, 2000. As that date fell on a
Sunday and January 1 is a holiday, claimant was required to both serve and file
his claim on or before January 2, 2001. As was the case with the negligence
cause of action, service of the claim on December 20, 2000 was timely, while its
filing on January 9, 2001 was not. As was also the case with the negligence
cause of action, defense counsel failed to raise this defect with particularity
or, indeed, at all. The defect of untimely filing is therefore waived.
For the reasons set forth above, defendant's motion is denied.
The following papers were read on defendant's motion for an order of dismissal:
1. Notice of Motion and Supporting Affirmation of Kevan J. Acton, Esq., AAG,
with annexed attachment;
2. Affidavit in Opposition (none received);
Filed papers: Claim, Answer.