New York State Court of Claims

New York State Court of Claims

LAWYER v. THE STATE OF NEW YORK, #2006-036-502, Claim No. 109555, Motion No. M-70762


Synopsis


Intentional tort claim dismissed - beyond one-year statute of limitations.

Case Information

UID:
2006-036-502
Claimant(s):
MICHAEL LAWYER
Claimant short name:
LAWYER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109555
Motion number(s):
M-70762
Cross-motion number(s):

Judge:
MELVIN L. SCHWEITZER
Claimant’s attorney:
Michael Lawyer, pro se
Defendant’s attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: J. Gardner Ryan, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 27, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant, formerly an inmate at Fishkill Correctional Facility, seeks damages arising from an alleged assault by a correction officer on April 15, 2003. The claim was served on June 28, 2004 and filed on June 30, 2004. In a decision and order dated September 6, 2005 (M-70377), the court granted defendant’s motion for permission to interpose an amended answer containing a defense based on the statute of limitations, which defendant has done. Defendant now moves for dismissal on such ground.

It is clear that this motion must be granted. The statute of limitations for intentional tort actions is one year from accrual (CPLR § 215[3]) and this claim was served and filed subsequent to the expiration of such period. The time in which the court could grant permission to late file also has expired (Court of Claims Act §10 [6]) and the claim is now beyond judicial recall. Claimant’s attempt to characterize the action as sounding in constitutional tort, rather than intentional tort, was addressed, unfavorably to claimant’s position, in the court’s prior order.

Under these circumstances, claimant’s argument that defendant was not prejudiced by the delay is unavailing. The court has no choice but to dismiss the claim.

The motion is granted and the clerk of the court is directed to close the file.


January 27, 2006
New York, New York

HON. MELVIN L. SCHWEITZER
Judge of the Court of Claims


The court read and considered the following papers on this motion:
  1. Notice of Motion, Affirmation and Exhibits.
  2. Affirmation in Opposition and Exhibit.