New York State Court of Claims

New York State Court of Claims

LIVINGSTON v. THE STATE OF NEW YORK, #2007-038-569, , Motion No. M-73835


Synopsis


Motion for permission to file late claim or treat notice of intention as claim denied as untimely. Claim

accrue


Case Information

UID:
2007-038-569
Claimant(s):
DETROY LIVINGSTON
Claimant short name:
LIVINGSTON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-73835
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
DETROY LIVINGSTON, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael W. Friedman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 31, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

d

Decision


Claimant, an inmate at Upstate Correctional Facility, moves pursuant to Court of Claims Act § 10 (6) for permission to file a late claim. The proposed claim seeks monetary damages for a period of 60 days of allegedly wrongful confinement in a Special Housing Unit. The proposed claim asserts that claimant was released from the SHU on September 19, 2003. A notice of intention to file a claim was received by the Office of the Attorney General on October 27, 2003; no claim was thereafter served. Claimant also moves for permission to treat the notice of intention as a claim, pursuant to Court of Claims Act § 10 (8) (a). The instant motion was filed on August 13, 2007. Defendant opposes the motion for late claim relief. The dispositive issue is whether this motion is timely. A motion for the relief sought by claimant must be filed “before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules” (Court of Claims Act §§ 10 [6]; 10 [8] [a]). The failure to file a motion for permission to file a late claim within the applicable statute of limitations is a jurisdictional defect which precludes the court from granting such a motion (see Matter of Miller v State of New York, 283 AD2d 830, 831 [3d Dept 2001]; Bergmann v State of New York, 281 AD2d 731, 733-734 [3d Dept 2001]; Williams v State of New York, 235 AD2d 776, 777 [3d Dept 1997], lv denied 90 NY2d 806 [1997]).

Here, if construed as a claim alleging the intentional tort of false imprisonment, a one-year statute of limitations applies (see CPLR 215 [3]; Ramirez v State of New York, 171 Misc 2d 677, 682 [Ct Cl 1997]). If construed as a claim alleging personal injury suffered as a result of defendant’s negligence, a three-year statute of limitations applies (see CPLR 214 [5]). In either case, the claim accrued when claimant was released from the SHU on September 19, 2003 (see Santiago v City of Rochester, 19 AD3d 1061 [4th Dept 2005], lv denied 5 NY3d 710 [2005]; Ramirez, at 680; Lewis v State of New York, UID #2007-028-560, Claim No. 113060, Motion Nos. M-73107, M-73226, Sise, P.J. [July 16, 2007]). Giving claimant the benefit of the three-year statute of limitations, the time within which to make a motion for permission to file and serve a late claim expired on September 19, 2006. Claimant’s motion was not filed until August 13, 2007, beyond the expiration of the longest applicable statute of limitations, and thus, its merits cannot be considered. For the same reasons, claimant’s request that the notice of intention be treated as a claim cannot be granted (see Court of Claims Act § 10 [8] [a]; Brooks v State of New York, UID # 2001-001-031, Motion No. M-63297, Read, P.J. [June 22, 2001]). Accordingly, it is

ORDERED, that Motion No. M-73835 is DENIED.

October 31, 2007
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Notice of Motion, dated July 21, 2007;

(2) Affidavit of Detroy Livingston, sworn to August 9, 2007, with exhibits A-E;

(3) Affirmation in Opposition of Michael W. Friedman, AAG, dated August 29, 2007.