1. Defendant’s notice of motion to dismiss (M-71898) filed June 22, 2006,
of Assistant Attorney General Michael C. Rizzo in support of motion to dismiss,
with attached Exhibits A-B.
Filed papers: Claim filed January 17, 2002; Answer filed February 4,
Unfortunately, it is difficult to ascertain with any specificity the exact
theories of liability
upon which this pro se Claimant is attempting to base his claim which is
currently scheduled to be heard during this Court’s July 12, 2006, pro se
trial term to be held at Elmira Correctional Facility. Generally, however,
Claimant seems to be alleging theories of liability based on false imprisonment,
constitutional tort, retaliation, and violations of internal prison regulations.
Defendant brings this unopposed motion to dismiss the claim on the grounds that
the Claimant failed to serve and file his claim within 90 days of the latest
accrual date alleged in the claim in violation of §§ 10 (3) and 11 of
the Court of Claims Act. This defense was raised with particularity as an
affirmative defense in the Defendant’s answer in compliance with § 11
(c) of the Court of Claims Act.
The filing and service requirements of the Court of Claims Act are
jurisdictional in nature and must be strictly construed (Finnerty v New York
State Thruway Authority, 75 NY2d 721, 723 ). Pursuant to § 10 (3)
of the Court of Claims Act, a negligence claim must be filed and served upon the
Attorney General within 90 days of accrual unless the Claimant serves upon the
Attorney General within this same 90 day period a notice of intention to file a
claim, in which event the claim must be filed and served within two years of the
accrual of the claim. No extension of the 90 day period is applicable herein as,
according to the Defendant, no notice of intention was served. The claim was
served on the Attorney General on December 24, 2001, and filed on January 17,
2002. Defendant alleges that the latest accrual date is August 10, 2001, when
the State allegedly refused to allow Claimant’s family to visit him while
he was incarcerated. If Defendant is correct and August 10, 2001, is the latest
accrual date, then this claim would have to be dismissed as untimely pursuant to
§§ 10 (3) and 11 of the Court of Claims Act as the claim was neither
served nor filed within 90 days of August 10, 2001.
The problem with Defendant’s argument is that it is difficult to
determine if August 10, 2001, is indeed the latest accrual date alleged in the
claim. The claim clearly states that it is alleging, inter alia
, a cause
of action for false imprisonment. A cause of action based on false imprisonment
accrues when Claimant is released from confinement (Ruiz v State of New
, Ct Cl, August 8, 2005, Patti, J., Claim No. 105154, Motion No.
M-70335, UID #2005-013-034).
On pages 17 and
18 of the claim, Claimant generally alleges that he spent 90 days in long term
keeplock at Great Meadow Correctional Facility and six months in the special
housing unit (SHU) at Southport Correctional Facility as a result of the
unwarranted and malicious actions of certain personnel of the Department of
Correctional Services (DOCS) during a hearing held on July 31, 2001. Giving the
pro se Claimant herein every benefit of the doubt, it is at least possible that
Claimant has alleged a cause of action for false imprisonment which accrued
within 90 days of the service and filing of this claim.
Based on the foregoing, Defendant’s motion must be denied, without
prejudice. At trial, the Court will attempt to ferret out Claimant’s
actual causes of action and their accrual dates. At this juncture, however,
there are simply too many dates set forth in the claim to conclude that Claimant
has failed to allege any timely cause of action. If Defendant continues to
believe that Claimant’s claim is time barred, it is free to reassert its
motion to dismiss at the time of trial. It is therefore:
ORDERED, that Defendant’s Motion No. M-71898 is denied, without