New York State Court of Claims

New York State Court of Claims

BACKMAN v. THE STATE OF NEW YORK, #2006-037-014, Claim No. 105488, Motion No. M-71898


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:
Prince Backman, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer
New York State Attorney General
By: Michael C. Rizzo, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 5, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves to dismiss claim no. 105488 pursuant to CPLR § 3212 on the grounds that the Court lacks subject matter and personal jurisdiction. The following were read and considered with respect to this motion:
1. Defendant’s notice of motion to dismiss (M-71898) filed June 22, 2006, and affidavit

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, 2002.

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 [1989]). 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 York, Ct Cl, August 8, 2005, Patti, J., Claim No. 105154, Motion No. M-70335, UID #2005-013-034).[1] 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 prejudice.

July 5, 2006
Buffalo, New York

Judge of the Court of Claims

[1]. This and other unreported Court of Claims decisions may be found on the Court’s web site at