New York State Court of Claims

New York State Court of Claims

LAMAGE v. THE STATE OF NEW YORK, #2004-034-573, Claim No. 106892, Motion No. M-69045


Defendant's motion to dismiss is denied. Claimant's allegation that he was subjected to "wrongful confinement" was sufficient to put the Defendant on notice of an illegal confinement.

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:
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 22, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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, 2004;

4. Affirmation of James L. Gelormini, dated August 31, 2004, with attached exhibit;

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 [1997]). 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 his claim.

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 wrongful confinement.

Based upon the above, it is

ORDERED, that Defendant's motion to dismiss the claim is denied.

September 22, 2004
Buffalo, New York

Judge of the Court of Claims