New York State Court of Claims

New York State Court of Claims

MALDONADO v. THE STATE OF NEW YORK, #2004-032-105, Claim No. 103646, Motion No. M-68889


Defendant's motion to dismiss this claim is denied, although with respect to both causes of action the claim was timely served but untimely filed. Because defendant is informed of the date on which a claim is filed with this Court and yet the answer contained no affirmative defense alleging such untimeliness, the defect is waived.

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:
Raul Lopez Maldonado, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Kevan J. Acton, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
November 22, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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 (id., ¶9).[1] 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 therefore waived.

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.

November 22, 2004
Albany, New York

Judge of the Court of Claims

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.

[1]In paragraph 4, he states that the State failed to release him from SHU on September 19, 2000. In paragraph 9, however, he states that he seeks to recover for "each day he unlawfully spent in SHU," specifically referring to the time period from September 5, 2000 to October 2, 2000. This period is 27 days long, whereas the period from September 19 to October 2 is 13 days long. The actual date on which he should have been released, and thus the actual period of wrongful confinement, is something that claimant will have to prove at trial.