New York State Court of Claims

New York State Court of Claims

RUIZ v. THE STATE OF NEW YORK, #2005-013-034, Claim No. 105154, Motion No. M-70335


Defendant's motion to dismiss the claim as untimely is granted.

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

Signature date:
August 8, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


On July 20, 2005, the following papers were read on motion by Defendant for dismissal of the claim:

Notice of Motion; Affirmation and Exhibit Annexed

Opposing Papers and Exhibits

Reply Affirmation

Filed Papers: Claim; Answer

The Defendant seeks to dismiss the instant claim as being untimely filed and served. The underlying claim, filed on November 1, 2001, seeks damages from the Defendant for its "wrongful and/or unjust confinement (False Imprisonment)" relating to Claimant's placement in the Special Housing Unit (SHU) at Orleans Correctional Facility.

Claimant alleges that he was wrongfully excessively confined after a disciplinary proceeding for 180 days in SHU. That disciplinary finding was ultimately reversed, and Claimant seeks damages for the period of his confinement in SHU. It is not disputed that Claimant's confinement in SHU related to the said disciplinary proceeding ended no later than May 27, 2001. The Defendant contends, without dispute, that the actual period of SHU confinement ended on May 21, 2001, but for purposes of this decision and because it inures to Claimant's benefit, I will utilize May 27, 2001 as the last day of such confinement.

The Defendant correctly asserts that a cause of action sounding in wrongful excessive confinement, a species of false imprisonment, accrues upon the release from confinement (see Allah v State of New York, Ct Cl, UID #2001-005-526 [Claim No. 99962, Motion No. M-63621], Aug. 9, 2001, Corbett, J.)[1]. Accordingly, argues the State, to be timely, the notice of intention here would have to have been served upon it no later than the 90th day following accrual of the cause of action. By utilizing May 27, 2001 as the last day of confinement, and counting 90 days starting May 28, 2001, service of the notice of intention here had to be completed by Saturday, August 25, 2001, extended to the next business day, Monday, August 27, 2001 (Court of Claims Act §11[a][i]). Defendant provides a copy of the document denominated by Claimant as a claim, but in actuality was a notice of intention to file a claim, and the envelope in which it was mailed, which shows that it was received on September 4, 2001 (Exhibit A to the motion papers). Since this document was untimely served, the Defendant seeks dismissal of the claim, actually filed on November 1, 2001, because neither the notice of intention nor the claim was timely.

Any alleged jurisdictional infirmity concerning timeliness or manner of service must be preserved with particularity in a pre-answer motion or in the answer (Court of Claims Act §11[c]). The second affirmative defense of the answer alleges that the notice of intention was untimely as it was not served within 90 days of the claim's accrual as required (Court of Claims Act §10[3-b]). In its reply papers, the Defendant acknowledges two typographical errors in the second affirmative defense, one which alleges that the date of Claimant's release from SHU confinement was May 27, 1991 [sic, should be May 27, 2001], and the second which asserts that the notice of intention was served on September 4, 1991 [sic, should be September 4, 2001]. Defendant seeks permission to correct those mistakes pursuant to CPLR 2101 [sic, should be CPLR 2001]. The mistakes noted above were obviously erroneous, and Claimant knew as much as early as February 21, 2002, when the Clerk of the Court returned to Claimant a "reply" to the Defendant's answer, in which he noted that the CPLR does not make any provision in these circumstances for a reply, in the absence of a counterclaim. But in that purported reply, Claimant addressed the discrepancy in the year, albeit asserting that the notice of intention was filed [sic] in a timely manner on August 27, 2001. This clearly demonstrates to me that Claimant was aware of the error in the years noted in the second affirmative defense. I find that these mistakes did not mislead Claimant and that he was placed on notice of the untimeliness assertions alleged in the second affirmative defense of the answer dated December 5, 2001. Accordingly, the dates in the second affirmative defense are deemed corrected to be in the year 2001, not 1991. I find that the second affirmative defense was sufficiently particular to have placed Claimant on notice of the Defendant's defense based upon Claimant's alleged failure to comply with the time limitation of Section 10(3-b).

The Claimant's reply, however, also reflects his misapprehension that the date of mailing (August 27, 2001 - see the affidavit of service of the notice of intention, appended as part of Exhibit A to Defendant's motion) was the date of service. Court of Claims Act §11(a)(i) clearly articulates that:

Service by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general [emphasis supplied].

Claimant's opposing papers here also reflect a misapprehension as to when his cause of action accrued, as he believed it did not accrue until July 9, 2001, the date of the reversal of the Superintendent's Hearing (Exhibit D to the claim). As noted above, a claim sounding in wrongful excessive confinement accrues upon the release from such confinement, at the latest here on May 27, 2001. I find that the notice of intention was served more than 90 days after the claim accrued.

The 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 deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721; Bogel v State of New York, 175 AD2d 493). Even those claims that miss the filing or service deadlines by only one day must be dismissed (Dependable Trucking Co. v New York State Thruway Auth., 41 AD2d 985; Matter of Marshall v State of New York, 144 Misc 2d 193).

The motion is granted and the claim is dismissed. The trial of this claim, scheduled for September 8, 2005 at Orleans Correctional Facility, is cancelled.

August 8, 2005
Rochester, New York

Judge of the Court of Claims

  1. Decisions and selected orders of the New York State Court of Claims are available on the Internet at