New York State Court of Claims

New York State Court of Claims

McCLOUD v. THE STATE OF NEW YORK, #2006-033-201, Claim No. 112045, Motion Nos. M-71650, M-71697


Synopsis



Case Information

UID:
2006-033-201
Claimant(s):
MICHAEL McCLOUD
Claimant short name:
McCLOUD
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112045
Motion number(s):
M-71650, M-71697
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Michael McCloud, Pro Se
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Anne C. Leahey, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 27, 2006
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim by Michael McCloud (hereinafter “claimant”) for false imprisonment, malicious prosecution and violation of his constitutional rights. Claimant was detained by New York State Department of Correctional Services from November 28, 2001 until November 2, 2004. Claimant alleges that his imprisonment was due to “false and fabricated” information submitted by defendant’s employees for a parole violation.


Defendant moves to dismiss the claim as untimely[1]. Claimant served a notice of intention on January 31, 2005. Claimant served his claim on March 27, 2006. The claim was filed with the Clerk of the Court on March 6, 2006.

Claimant seeks to withdraw the claim without prejudice or for additional time to answer defendant’s motion[2].

First, the Court agrees with defendant’s analysis that claimant has failed to state a basis for a constitutional tort (see Brown v State of New York, 89 NY2d 172). From the allegations contained in the claim, claimant has alleged the common-law torts of false imprisonment and malicious prosecution. Thus, state constitutional torts are not the available remedy to claimant (Remley v State of New York, 174 Misc 2d 523). In addition, this Court has no jurisdiction over federal constitutional claims.

The Court turns its attention to the torts that claimant has alleged: false imprisonment and malicious prosecution. These are intentional torts. Court of Claims Act §10(3-b) states:
A claim to recover damages for injuries to property or for personal injuries caused by the intentional tort of an officer or employee of the state while acting as such officer or employee, or of a member of the organized militia or of an employee in the division of military and naval affairs of the executive department, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim.

In the instant matter, claimant timely served his notice of intention. However, to timely file and serve the claim, service and filing should have been completed by November 2, 2005. Unfortunately, claimant did not serve or file the claim until March 2006.

The Court denies claimant’s motion to withdraw the claim without prejudice or, in the alternative, to grant an adjournment to answer defendant’s motion. The Court could allow claimant to withdraw the claim. However, if the claim is withdrawn then claimant would have to make a motion pursuant to Court of Claims Act §10(6) for permission to file a late claim. Permission to file a late claim would not be granted. Such a motion must be filed prior to the expiration of the statute of limitations in the CPLR. The statute of limitations for false imprisonment and malicious prosecution is one year (CPLR 215). Therefore, the statute of limitations expired on November 2, 2005.

Claimant alleges that he had a motor vehicle accident in August 2005 and is disabled. To support this position claimant supplies two doctors’ notes which indicates certain physical limitations for work. One of the notes is dated October 10, 2005 and the other is dated December 12, 2005. Claimant was not hospitalized and his limitations seem to be for work. Claimant was not bedridden. The Court does not find that claimant was so disabled as to be impossible for him to prosecute this action in a timely manner.

Based upon the foregoing, claimant’s motion is denied, and defendant’s motion to dismiss is granted. The claim is dismissed and the Clerk of the Court is directed to close the file.


September 27, 2006
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on defendant’s motion: Notice of Motion to Dismiss dated April 26, 2006 and filed May 1, 2006; Memorandum of Law in Support of Defendant’s Motion to Dismiss of Anne C. Leahey, Esq. dated April 26, 2006 and received May 1, 2006.
[2].The following papers have been read and considered on claimant’s motion: Claimant’s Motion to Voluntarily Withdraw This Claim Without Prejudice and or Extension of Time to Respond to the Defendant’s Motion to Dismiss with annexed Exhibits sworn to May 5, 2006 and filed May 10, 2006.