The Court has considered the following papers in connection with Defendant's
motion to dismiss:
1. Claim, verified October 28, 2002, filed November 6, 2002;
2. Answer, verified December 31, 2003, filed January 6, 2003;
3. Defendant's Notice of Motion, dated August 31, 2004, filed September 2,
4. Affirmation of James L. Gelormini, dated August 31, 2004, with attached
5. Claimant's "Affirmation in Opposition to Defendant's Motion for Summary
Judgment," dated September 6, 2004, filed September 8, 2004;
6. Reply Affirmation of James L. Gelormini, dated September 9, 2004, filed
September 13, 2004;
7. Corrected Reply Affirmation of James L. Gelormini, dated September 13, 2004,
filed September 15, 2004;
8. Claimant's "Affirmation in Opposition to Defendant's Reply Affirmation,"
dated September 13, 2004, filed September 15, 2004.
Claimant, an inmate formerly assigned to Attica Correctional Facility, has
filed a claim alleging that he was wrongfully confined to the facility's Inmate
Protective Custody Unit (IPCU) from September 29, 2001 through December 17,
2001, and that incidental thereto he also was denied "out of cell" recreation
and meals. Defendant has now moved for summary judgment dismissing the claim as
untimely, and for failure to state a cause of action. The Court will deny the
motion in full.
Regarding timeliness, Defendant does not dispute that Claimant served his
notice of intention to file a claim on March 4, 2002, within 90 days of his
release from the IPCU. It is the State's position that the notice of intention
failed to allege that the IPCU confinement was illegal, and thus could not work
to extend Mr. Lamage's time to file and serve a claim to recover for such acts.
The Court agrees that the service of a notice of intention under Court of Claims
Act § 10 (3) or § 10 (3-b) would extend the 90-day time limits
otherwise mandated for commencement only with respect to matters set forth
therein (see Gerwitz v State of New York, Ct Cl, November 5, 2001,
Corbett, J., Claim No. 100439, Motion Nos. M-63374, CM-64081 [2001-005-532];
Tafari v State of New York, Ct Cl, April 3, 2003, Minarik J., Claim No.
103164, Motion No. 65946 [UID No. 2003-031-013]). However, the Court disagrees
with the State's contention that the notice of intention failed to allege the
illegal nature of Claimant's wrongful confinement claim sufficiently to extend
his time for commencement. "As long as the notice of intention sufficiently
sets forth the general nature of the claim with enough detail to enable the
State to investigate, it is unnecessary that a cause of action be stated."
(Ferrugia v State of New York, 237 AD2d 858, 859 ). Here, the
Court finds that the statement "The tort is total of 80 days wrongful IPC
confinement . . ." (Affirmation in Support of Motion of James L. Gelormini,
Exhibit 1, [Notice of Intention to File a Claim, ¶2]) was sufficient to
allow the State to determine and investigate the nature of the claim. Thus, the
notice of intention was sufficient to extend Claimant's time to file and serve
Likewise, the Court will deny dismissal of that portion of the claim which
seeks recovery for denial of out-of-cell meals. Claimant has not alleged
"improper" meal service, but a denial of out-of-cell privileges as a part of
Based upon the above, it is
ORDERED, that Defendant's motion to dismiss the claim is denied.