In a letter dated September 26, 2006 
claimant’s counsel wrote to the acting DOCS Commissioner, enclosing a copy
of a letter to Superintendent Perez from an official with ACS dated September
11, 2006 
, who advised that he was in charge
of nursery clearances for ACS, that there had been a change in command at ACS at
the time the Rikers Island request was made and he was preoccupied with other
matters, that there was no record of any response by ACS to the request, that
the information that there had been an ACS case against claimant was mistaken
and that there had been an ACS case against claimant’s mother but never
against claimant. He stated he had no idea how the wrong information had been
communicated to Rikers Island. Also on September 26, claimant was transferred
from Bedford Hills to Albion Correctional Facility, which does not have a
On October 10, claimant filed an Article 78 petition seeking transfer to a
facility with a nursery program and admittance into the program. Nine days
later, she was transferred to Taconic Correctional Facility and admitted into
the nursery program and on October 24, she was reunited with her infant
daughter. The Article 78 petition was subsequently dismissed as moot.
In this claim, served and filed on November 6, 2006, claimant seeks damages of
$100,000 for defendant’s alleged tortious interference with her
relationship with her child, negligent infliction of emotional distress and
violations of her Constitutional rights to due process and equal protection.
She also seeks an award of attorneys’ fees and costs, relief that is
unavailable in this court (Court of Claims Act § 27). In Motion No.
M-73105, claimant seeks to amend her claim to add a cause of action for
“negligent breach of duty.” In Motion No. M-72795, defendant seeks
dismissal of the claim for lack of jurisdiction arising out of claimant’s
alleged failure to timely serve and file the claim.
As defendant notes, the Court of Claims Act requires tort claims to be served
and filed within 90 days of accrual (Court of Claims Act §§ 10,
10[3-b]). Defendant contends that this claim accrued on June 8, 2006 when
Superintendent Perez denied claimant’s application for admission into the
Bedford Hills nursery program and that it must therefore be dismissed.
Claimant, citing Mahoney v Temporary Commn. of Investigation of the State of
(165 AD2d 233 [3d Dept 1991]), argues that defendant’s
employees engaged in “continuous wrongful conduct through October 24,
and that the claim was therefore
timely filed and served. Claimant’s position in this regard is without
The Court of Appeals has consistently held that “[b]ecause suits against
the State are allowed only by the State’s waiver of sovereign immunity and
in derogation of the common law, statutory requirements conditioning suit must
be strictly construed” (Dreger v New York State Thruway Auth., 81
NY2d 721, 724 ; see also Lepkowski v State of New York, 1 NY3d 201
). Such strict construction applies to the time limitations set forth in
section 10 of the Court of Claims Act; as applicable here, the requirement that
a claim be served and filed within 90 days of its accrual.
A claim accrues when damages become ascertainable (Augat v State of New
York, 244 AD2d 835 [3d Dept 1997], lv denied 91 NY2d 814 ;
Flushing National Bank v State of New York, 210 AD2d 294 [2d Dept 1994]).
Here, claimant’s damages – i.e., her separation from her child as
the result of defendant’s allegedly improper rejection of her application
for admission into the Bedford Hills nursery program – were apparent when
she was notified of Superintendent Perez’s decision on June 8, 2006.
Claimant argues that this case warrants application of the “continuing
violation” doctrine where liability is “predicated on continuing
unlawful acts and not on the continuing effect of earlier unlawful
conduct”. Her position in this regard is clearly untenable (Selkirk v
State of New York., 249 AD2d 818, 819 [3d Dept 1998]). The continuing
unlawful acts that claimant asserts extend the filing period consist of the
defendant’s adherence to its original decision, despite continuing
requests for reconsideration in the form of letters from claimant, grievances
and letters from counsel. Claimant has presented no authority for the
proposition that a potential claimant can extend the jurisdictional filing
period merely by requesting reconsideration of the decision that forms the basis
of the causes of action. The fact that Superintendent Perez re-reviewed the
matter, and that her staff attempted for some time to contact ACS to find out
whether there had been a mistake, does not change this conclusion.
relied upon by
claimant is instructive. There, claimants alleged that officials of the NYS
Temporary Commission of Investigations engaged in a course of conduct design to
harass and defame them, citing specific acts that occurred during the course of
the investigation which began in 1983 and continued through December, 1985 when
the commission issued its report. The court held that all of the alleged
wrongful acts were part of a continuous course of conduct and that any damages
resulting from individual acts “could not be effectively ascertained
and evaluated until the report was released
, 165 AD2d 233, 241). The case at bar is distinguishable from
on its face. Nothing prevented claimant from serving and filing
a claim, or serving a notice of intention, while at the same time requesting
reconsideration. Her damages were fully ascertainable when she was first
notified of the decision. Although counsel, in her affirmation in opposition to
the motion to dismiss, refers to the Superintendent’s June 8 decision as
“preliminary,” that characterization is a completely false and
transparent attempt to create the impression that this case is somehow analogous
. Notwithstanding that it was, in fact, later reconsidered,
there was nothing “preliminary” about this decision.
Accordingly, defendant’s motion to dismiss for lack of jurisdiction
arising from late service and filing of the claim must be, and is hereby
Claimant’s motion for leave
to amend the claim is denied as moot.
In her Memorandum of Law in Opposition to the dismissal motion, claimant
requests permission to late file pursuant to Court of Claims Act § 10(6).
That statute grants the court the discretion to allow a claimant to serve and
file a late claim upon consideration of all relevant factors, including whether
claimants delay was excusable, whether defendant had timely notice and the
opportunity to investigate the pertinent allegations, whether defendant would
suffer substantial prejudice should late filing be allowed, whether the proposed
claim has the appearance of merit and whether claimant has an alternate
The statute further provides: “The application for such permission shall
be made upon motion returnable at any regular or special session of the court
and may be heard and determined by any judge thereof.” The words
“upon motion” were added to the quoted sentence in 2001 (L.2001, c.
205) upon “the request of the Chief Administrative Judge upon the
recommendation of the judges of the State Court of Claims” in order to
specify that “applications brought pursuant [ to § 10(6)] be
initiated upon motion” (N.Y. Bill Jacket, 2001, A.B. 7925, Ch. 205).
Thus, the court is without power to grant claimant’s request for
permission to late file, since no motion or cross-motion was made. An informal
request made in a memorandum of law does not suffice (see Signature Health
Center v State of New York, Ct Cl, Collins, J., UID No. 2005-015-058,
January 3, 2006). Accordingly, claimant’s informal request for permission
to late file is denied for that reason.
Nevertheless, the court is constrained to note that, had a proper motion or
cross-motion been made, it would have been denied on substantive grounds.
Although it is clear that defendant had timely notice of the relevant facts and
conducted a timely investigation, and would not suffer any prejudice from an
order allowing late filing, the remaining statutory factors would weigh against
granting the motion.
The reason for claimant’s delay – counsel’s misapprehension
of the law as to when a claim accrues – cannot be deemed excusable within
the meaning of the statute ( see, e.g., Matter of E.K. (Anonymous) v State of
New York, 235 AD2d 540 [2d Dept 1997]), particularly since it would have
taken minimal additional effort to prepare and serve a notice of intention to
file a claim, thereby preserving claimant’s opportunity to interpose a
While claimant is correct in noting that the burden of establishing apparent
merit to a proposed claim is not high 1
facts before the court provide no indication that a cause of action exists
against the State of New York. While it appears that a mistake was made by
officials at either Rikers Island (a facility operated by the City of New York)
or the New York City Administration for Children’s Services, this court
has no jurisdiction over the City of New York. Clearly, this mistake was the
major factor in Superintendent Perez’s decision, both directly and
indirectly (because the rejection of claimant’s application by Rikers
Island and the subsequent placement of the infant with claimant’s aunt was
a fait accompli
by the time claimant was transferred to State
Moreover, defendant is correct in arguing that Correction Law § 611, which
is the basis for nursery programs at correctional facilities, provides that a
child born to a mother in custody “may” be returned to its mother
and may remain there “for such period as seems desirable...” This
language clearly indicates that decisions in this regard are matters of
discretion and do not implicate any right accruing to an inmate requiring
admittance into a nursery program. Claimant has not submitted any authority to
the contrary. Indeed, the papers before the court indicate that Superintendent
Perez exercised her discretion in an appropriate manner and considered all
relevant factors. Once the mistake as to the crucial factor was revealed (i.e.,
six weeks later, allowing for typical bureaucratic delay and conceding the role
played by claimant’s filing the Article 78 proceeding) the decision was
reconsidered and claimant was reunited with her child.
Finally, the court notes the availability of an obvious alternate remedy
– an action against the City agencies who have acknowledged that they made
the mistake that was the initial and most direct cause of claimant being
separated from her child.
Thus, had claimant properly made a motion or cross-motion for relief pursuant
to § 10(6), it is likely that such would have been denied.
For the reasons stated, defendant’s motion is granted and the claim is
dismissed for lack of jurisdiction.