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,
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
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,
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 ) 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
. at 318)
noted the analogies that state courts traditionally draw to Bivens
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
Based upon the foregoing, it is hereby
ORDERED, that Defendant's motion to reargue is denied.