New York State Court of Claims

New York State Court of Claims

WALTHOUR v. STATE OF NEW YORK, #2007-039-039, Claim No. 110303, Motion No. M-70146


Synopsis


Defendant’s motion to dismiss claim granted. Claimant sought an award of damages for his alleged improper detention as a result of the State’s intentional conduct in refusing to honor the sentencing court’s order to transfer him to a drug program. The Court found that the claim accrued no later than June 17, 2003, and that service of the claim on the Office of the Attorney General on December 3, 2004, more than 90 days after the accrual of the claim, was not timely pursuant to Court of Claims Act § 10. Nor was claimant entitled to late claim relief as the one-year statute of limitations for false imprisonment based upon the intentional conduct of prison officials had expired.

Case Information

UID:
2007-039-039
Claimant(s):
TYRONE WALTHOUR
Claimant short name:
WALTHOUR
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110303
Motion number(s):
M-70146
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Tyrone Walthour, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Kevan J. ActonAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 4, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant Tyrone Walthour entered a plea of guilty to criminal sale of a controlled substance in the fifth degree, a felony, in violation of Penal Law § 220.31, and reckless endangerment in the second degree, a misdemeanor, in violation of Penal Law § 120.20. On December 18, 2002, the Court (DiTullio, J.) sentenced claimant on the felony conviction to an indeterminate term of imprisonment of three to six years and suspended the sentence with a recommendation that claimant be transferred to the Willard Drug Treatment Center (hereinafter “drug program”). The Court also sentenced claimant to a term of imprisonment of one year on the misdemeanor conviction, to run concurrently with his sentence on the felony conviction.

Claimant was assigned to Elmira Correctional Facility following his sentencing, and on March 25, 2003 he authored a letter to his prison counselor inquiring about the status of his transfer to the drug program. Following claimant’s transfer to Collins Correctional Facility, his attorney sent two letters to the sentencing judge dated April 21, 2003 and June 20, 2003 regarding alleged errors in the sentencing commitment form and the claimant’s continued detainment in state prison. On June 17, 2003, the New York State Department of Correctional Services (hereinafter DOCS) sent a letter to the sentencing judge, and a copy to claimant, notifying the court that claimant was ineligible for parole supervision and that he was being transferred to a general confinement facility.

Claimant then filed a petition for a writ of habeas corpus with the Supreme Court, verified on August 12, 2004, wherein he alleged, among other things, that he was being wrongfully detained at Collins Correctional Facility and that his proper placement was with the drug program. On September 30, 2004, the Court (Townsend, J.) converted the petition to an Article 78 proceeding. Defendant avers, and claimant does not dispute, that following the Supreme Court’s consideration of the converted petition, the Court ordered claimant to be transferred to the drug program, but it did not make an award of ancillary damages.

Claimant concedes that on December 3, 2004 he served a claim on the Office of the Attorney General seeking damages for his alleged improper detention as a result of the State’s intentional conduct in refusing to honor the sentencing court’s order to transfer him to the drug program. The claim was subsequently filed with the Court on January 3, 2005. Claimant alleges, among other things, that he spent “more than 20 months incarcerated before being transported to the Willard program,” and that if he had been transferred in a timely fashion, he would have been released from the drug program in 90 days.

Defendant now moves the Court for an order dismissing the claim pursuant to Court of Claims Act § 10 for failure to file and serve the claim upon the Attorney General within 90 days after the accrual of the claim. Defendant further posits that late claim relief is not available to claimant pursuant to Court of Claims Act § 10 (6) because the one-year statute of limitations for intentional torts has expired. Claimant opposes the motion and argues, among other things, that he was not able to ascertain the extent of his damages until he was transferred to the drug program on October 18, 2004 and that, accordingly, his claim was filed and served in a timely manner.

“It is axiomatic that the failure to file a notice of claim with the State within 90 days of the accrual of the claim is a fatal jurisdictional defect” (Conner v State of New York, 268 AD2d 706, 707 [2000]). Where, as here, there is “no basis for applying a ‘discovery rule’ . . . because such a theory of claim accrual ‘should not be extended beyond the limited instances provided for by the Legislature,’ ” (id., quoting Matter of Barresi v State of New York, 232 AD2d 962, 963 [1996]), the claim accrues when claimant’s “damages [are] reasonably ascertainable” (id.; see also Augat v State of New York, 244 AD2d 835, 836 [1997], lv denied 91 NY2d 814 [1998]).

The Court finds in the first instance that the claim accrued no later than June 17, 2003 when claimant received a copy of DOCS’ letter notifying the sentencing judge that claimant was not eligible for parole and would instead be transferred to a general confinement facility. Certainly, claimant’s damages were reasonably ascertainable at this time (see Conner v State of New York, supra at 707). Notably, claimant alleges in his claim that the intentional acts giving rise to his unlawful confinement occurred on June 17, 2003. Arguably, the claim accrued as early as March 2003 when claimant inquired with his counselor as to the status of his transfer to the drug program, or in April 2003 when his attorney authored a letter to the sentencing court. Nonetheless, even if claimant’s time to file and serve his claim is calculated from June 17, 2003, the Court is constrained to find that his service of the claim on December 3, 2004 was not timely pursuant to Court of Claims Act § 10.

Based upon the foregoing, the Court further finds that late claim relief is no longer available to claimant. Court of Claims Act § 10 (6) provides, in relevant part, that
“[a] claimant who fails to file or serve upon the attorney general a claim or to serve upon the attorney general a notice of intention . . . within the time limited therein for filing or serving upon the attorney general the claim or notice of intention, may, nevertheless, in the discretion of the court, be permitted to file such claim at any time 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.”

The statute of limitations for an action to recover damages for false imprisonment based upon the intentional conduct of prison officials is one year (see CPLR 215 [3]; see also Adams v State of New York, Ct Cl, Schaewe, J., October 24, 2006, UID # 2006-044-509; Lamage v State of New York, Ct Cl, Hudson, J., September 22, 2004, UID # 2004-034-570). Since claimant had until June 17, 2004 to commence his claim and did not do so until months later, he is now barred from doing so by the applicable statute of limitations. As a further consequence, he is no longer entitled to late claim relief.

Accordingly, it is hereby ordered that M-70146 is granted and the claim is dismissed.

September 4, 2007
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:

  1. Notice of Motion to Dismiss dated May 5, 2005;
  2. Affirmation in Support of Motion to Dismiss affirmed on May 5, 2005;
  1. Answer to Motion to Dismiss sworn to on July 8, 2007;
  1. Defendant’s Reply affirmed on July 20, 2007; and
  1. Claimant’s Affirmation in Opposition sworn to on July 26, 2007.