New York State Court of Claims

New York State Court of Claims

BERRY v. THE STATE OF NEW YORK, #2005-034-502, Claim No. 108129, Motion No. M-68451


This motion to reargue addresses the applicable time limitation for commencement of a State constitutional tort claim in a circumstance where a timely notice of intention had been served. The Court adhered to its initial determination that the appropriate time limitation is two years under Court of Claims Act § 10 (3) and not the one-year time period for intentional torts under section 10 (3-b)

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:
January 28, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers have been submitted in this motion:

1. Claim, verified July 25, 2003, filed August 11, 2003;

2 Answer, verified September 3, 2003, filed September 5, 2003;

3. Decision and Order (Hudson, J.) dated March 10, 2004, filed March 26, 2004;

4. Notice of Motion to Reargue, dated May 7, 2004, filed May 11, 2004;

5. Affirmation of James L. Gelormini, dated May 7, 2004, with attached exhibit;

6. "Affirmation in Opposition to Motion to Reargue" of Joseph Berry, dated May 22, 2004, filed May 26, 2004;

7. Reply Affirmation of James L. Gelormini, dated May 25, 2004, filed May 27, 2004.

Claimant has sought to recover damages resulting from alleged verbal and physical abuse, the filing of a false misbehavior report and denial of access to a law library by correction officers on July 23 and 29, 2002, while he was confined to Wyoming Correctional Facility. Mr. Berry served a notice of intention to file a claim on October 18, 2002. He then filed his claim on August 11, 2003, alleging causes of action for assault and battery, the filing of a false misbehavior report, and State constitutional tort violations. Defendant subsequently moved to dismiss the claim as untimely and for improper service, since Mr. Berry undisputedly had effected service upon the Attorney General on August 4, 2003, by ordinary mail. On December 3, 2003, during the pendency of the dismissal motion, Claimant re-served the claim by certified mail, return receipt requested.

By Decision and Order filed March 26, 2004, I granted dismissal with respect to those portions of the claim based upon intentional tort and the filing of the misbehavior report, but denied relief with respect to the cause of action for State constitutional violations. Defendant now moves to reargue the dismissal motion based upon my alleged misapprehension of the applicable Statute of Limitations for State constitutional torts in circumstances where the timely service of a notice of intention would extend the time for commencement. Claimant has opposed reargument, in part contending that the motion is untimely. For the reasons that follow, I will deny reargument, without addressing whether the motion was timely served.

In my earlier decision I applied the two-year limitation period of Court of Claims Act § 10 (3) in weighing the timeliness of Claimant's State constitutional tort cause of action. My decision relied upon Brown v State of New York, 250 AD2d 314, 318-319 (1998) on remand from 89 NY2d 172 (1996) in which the Third Department in part affirmed a determination that the three-year Statute of Limitations set forth within CPLR 214 (5) for general personal injury actions would apply to such claims. Based upon Brown's favoring of a remedial or general Statute of Limitations over the time limitations for intentional torts under the CPLR, I similarly declined to apply the one-year time limitation set forth for intentional torts under Court of Claims Act § 10 (3-b).

In seeking reargument Defendant asserts that Brown is inapplicable since the issue therein focused on whether notices of intention could be treated as claims pursuant to Court of Claims Act § 10 (8), which only necessitated a resolution of the applicable Statute of Limitations for "a like claim against a citizen of the state." Counsel urges that the Third Department did not determine the time limitations for filing of such claims against the State itself, and specifically whether the time period for the filing of a claim for a constitutional tort where a notice of intention has been served would be two years under Court of Claims Act § 10 (3), which applies to claims "for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state," or one year under section 10 (3-b), governing claims "caused by the intentional tort of an officer or employee of the state." Relying on Daniels v Williams, 474 US 327 (1986) in which the Supreme Court determined that a "mere lack of due care by a state official" does not give rise to a claim for deprivation of life, liberty or property (Daniels, 474 US at 330, 331), Defendant contends that a violation of an individual's constitutional rights requires intentional conduct rather than mere negligence, and thus Claimant should have filed his claim within one year of accrual pursuant to section 10 (3-b).

In response I disagree with Defendant's limited analysis of Brown. While the Third Department did in part affirm a determination by the Court of Claims (Hanifin, J.) to treat notices of intention as claims, the Court also affirmed the trial court's tolling of the Statute of Limitations "based upon the fact that filing the claim within the applicable two-year period (see Court of Claims Act § 10 [3]) would be meaningless in light of its order . . . which had dismissed the claim" (Brown, 250 AD2d at 319). That assertion, while not critical to the affirmance of the tolling determination, nevertheless represented the Third Department's view that the time limits of section 10 (3), and not section 10 (3-b), would govern State constitutional tort claims filed in the Court of Claims.

Further, the analysis followed by the Third Department in determining that CPLR 214 (5) governs State constitutional tort claims against citizens of this State also tends to support the application of section 10 (3) to claims filed in this court (see Brown, 250 AD2d at 318-319). Brown (id. at 318) noted the analogies that state courts traditionally draw to Bivens actions[1] in recognizing such implied damage causes of action, including the Court of Appeals in Brown I, at 89 NY2d 177. Noting the recognized similarities between civil rights claims under 42 USC § 1983 and Bivens claims, the Third Department then cited Owens v Okure, 488 US 235 (1989) and Chin v Bowen, 833 F 2d 21, 22-24 (1987), in which the United States Supreme Court and Second Circuit Court of Appeals respectively addressed which Statute of Limitations to borrow in section 1983 and Bivens claims filed in the Federal courts within this State. In each instance CPLR 214 (5), the residual three-year statute applicable to unspecified personal injury actions, was deemed to apply. The Supreme Court in Owens also recognized the problems inherent in determining time limitations in section 1983 litigation on a case-by-case basis: "[t]he practice of seeking state-law analogies for particular § 1983 claims bred confusion and inconsistency in the lower courts and generated time-consuming litigation." (Owens, 488 US at 240). Critically, the Supreme Court went on to reject the application of an intentional tort limitation period, noting that "[e]ven where intent is an element of a constitutional claim or defense, the necessary intent is often different from the intent requirement of a related common-law tort." (id. at 249). That recognition of the need for uniformity, and that differing mental operations can exist between constitutional torts and common law intentional torts, also applies to State constitutional tort litigation in the Court of Claims.

Here, pursuant to Brown the appropriate Statute of Limitations for Mr. Berry's State constitutional tort claim as against a private citizen would be the three-year period for unspecified personal injury actions set forth in CPLR 214 (5). To deem that same cause of action to be an intentional tort for purposes of commencement in this court is inconsistent with that determination, and the rationale that resulted in that choice of limitations periods. In addition, Defendant's request is repugnant to the expression in Brown that the time limitations of section 10 (3) would apply to the filing of such claims in this court.

Lastly, the suggested application of a section 10 (3-b) limitation period fails to consider that Mr. Berry's claim derives from several incidents, and separate forms of action and omission on the part of two correction officers. Just as Owens recognized that forms of intentional conduct in section 1983 litigation at times do not conform to traditional intentional tort principles, some of Claimant's factual allegations likewise do not fit such characterizations.

Based upon the foregoing, it is hereby

ORDERED, that Defendant's motion to reargue is denied.

January 28, 2005
Buffalo, New York

Judge of the Court of Claims

[1] See Bivens v Six Unknown Fed. Narcotics Agents, 403 US 388 (1971).