New York State Court of Claims

New York State Court of Claims

O’NEAL v. THE STATE OF NEW YORK, #2007-015-145, Claim No. 112354, Motion Nos. M-72277, M-72300


Defendant's motion to dismiss claim for failure to serve the Attorney General was denied as premature and claimant's motion for late claim relief was denied as unnecessary. Time remained for service of the claim.

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):
M-72277, M-72300
Cross-motion number(s):

Claimant’s attorney:
Dahmoni O'Neal, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney GeneralBy: Paul F. Cagino, Esquire and Michael C. Rizzo, Esquire, Assistant Attorneys General
Third-party defendant’s attorney:

Signature date:
January 9, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves (M-72277) to dismiss this claim pursuant to CPLR 3211(a)(2) and (8) on the ground that the Court lacks jurisdiction to hear the claim because the claimant failed to serve his claim upon the Attorney General as required by Court of Claims Act § 11(a). Claimant moves (M-72300) to file a late claim. For the reasons which follow, defendant's motion is denied as premature and the claimant's motion to file a late claim is denied as unnecessary. In support of its motion to dismiss the claim, the defendant argues that although the claim was filed with the Court of Claims on May 18, 2006, it was not served upon the Attorney General as required by Court of Claims Act § 11. Claimant does not contest this assertion, and moves instead for late claim relief.

The defendant acknowledges that "claimant has previously served a notice of intention which was received in the Office of the Attorney General on November 1, 2005". The notice of intention, a copy of which was attached to claimant's motion papers, asserts the following:
I was arrested on August 13, 2004. At that time I had remaining seven (7) months and three (3) days of supervised parole from a prior arrest. I was convicted on the second charge and scheduled to be released on April 13, 2005.

Due to the negligence and improper conduct of my assigned parole officer Parrish of Queens 2 at Jamaica, Queens, I was caused to spend an additional four (4) months and eighteen (18) days in jail. Instead of being released on my original max date of April 13, 2005, I was caused to remain in jail until August 31, 2005.

My parole officer violated Executive Law and failed to give the Criminal Court timely information regarding my outstanding parole as he was required to do. As a result the Criminal Court in sentencing me on other charges did not make a ruling regarding my outstanding parole. Instead of my serving my outstanding parole time concurrently with the jail sentence of my second charge, the parole time was added on after the second jail sentence. This was a violation of Penal Law § 70.25.

Although the claimant sets forth in his claim that the claim accrued on April 13, 2005, the correct accrual date on a cause of action for wrongful confinement is the day that the wrongful confinement ends; in this case August 31, 2005 (Ramirez v State of New York, 171 Misc 2d 677 [1997]; see also Collins v McMillan, 102 AD2d 860 [1984]; Carlisle v State of New York, Ct Cl, December 5, 2006 [Motion No. M-72193, UID # 2006-034-612] Hudson, J., unreported[1]). Claimant's notice of intention to file a claim, which was received by the Attorney General on November 1, 2005, was served within 90 days of the claim's accrual and is therefore timely.

The determination of whether the one year limitation period for intentional conduct set

forth in Court of Claims Act § 10 (3-b) or the two year period for negligence set forth in Court of Claims Act § 10 (3) applies depends upon the nature of the cause of action asserted. While the tort of wrongful confinement is considered a "species" of false imprisonment (Gittens v State of New York, 132 Misc 2d 399 [1986]) and thus an intentional tort, the Court in Ramirez v State of New York, supra, noted a difference critical to the determination of the applicable limitations period. In the prison setting, liability for wrongful confinement may be imposed for ministerial errors which are the product of negligence. In such cases, it has been held that the two year limitation period set forth in Court of Claims Act § 10(3) applies (see Ramirez v State of New York, supra; see also Adams v State of New York, Ct Cl, October 24, 2006 [Motion No. M-72127, UID # 2006-044-509] Schaewe, J., unreported]). Likewise, in this case, claimant alleges that the wrongful excessive confinement occurred as the result of negligence, not intentional conduct, thereby giving him the benefit of the two-year limitations period set forth in Court of Claims Act § 10 (3). Measured from the claimant's release date of August 31, 2005, his time to file and serve his claim does not expire until August 31, 2007. Accordingly, the defendant's motion to dismiss the claim is denied as premature and the claimant's motion for late claim relief is denied as unnecessary.

January 9, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

Motion No. M-72277
  1. Notice of motion dated September 12, 2006;
  2. Affirmation of Paul F. Cagino dated September 12, 2006 with exhibits;

Motion No. M-72300

  1. Notice of motion filed September 20, 2006;
  2. Affidavit of Dahmoni O'Neal sworn to September 15, 2006 with exhibits;
  3. Affidavit of Michael C. Rizzo sworn to October 24, 2006.

[1].Unreported decisions from the Court of Claims are available via the internet at