New York State Court of Claims

New York State Court of Claims

UBALDO v. STATE OF NEW YORK, #2007-039-056, , Motion No. M-73529


Synopsis



Case Information

UID:
2007-039-056
Claimant(s):
UBALDO ROMERO
Claimant short name:
UBALDO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-73529
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Ubaldo Romero, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Belinda A. Wagner and Michael T. KrenrichAssistant Attorneys General
Third-party defendant’s attorney:

Signature date:
January 9, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Ubaldo Romero, an inmate at Clinton Correctional Facility at the time of the circumstances alleged herein, moves the Court for permission to file a late claim. In support of his motion, movant alleges, among other things, that on June 3, 2006 correction officers searched his cell and, after discovering a shank, used unauthorized force against him causing him to suffer severe physical injuries, and destroyed his typewriter.

On June 13, 2006, movant filed an inmate grievance alleging that he was “beaten up, and coerced into a false confession.” On August 23, 2006, following a hearing, the Central Office Review Committee (hereinafter CORC) upheld the Superintendent’s determination and concluded, in relevant part, that movant did not present “sufficient evidence to substantiate any malfeasance by staff.”[1] Movant further contends that after exhausting his administrative remedies, he appealed the matter to the New York State Appellate Division, Third Department, and the matter is pending before the Court.[2]

On September 18, 2006, movant served a notice of intention to file a claim on the Attorney General’s Office. On May 31, 2007, the instant motion was served on the Attorney General’s Office. Movant contends, among other things, that his application is timely because his claim did not accrue until he had exhausted his administrative remedies which occurred on August 23, 2006 when CORC issued its final determination regarding his inmate grievance. Defendant opposes the motion and argues, among other things, that the claim accrued on June 3, 2006, the date of the alleged assault, and that movant’s application is therefore untimely, pursuant to Court of Claims Act § 10 (6).

“Court of Claims Act § 10 (9) expressly requires an inmate seeking to recover damages for lost personal property to file a claim within 120 days following the exhaustion of available administrative remedies” (Pristell v State of New York, 40 AD3d 1198 [2007]). “It is clear that ‘the requirements of the Court of Claims Act as to the filing of claims must be strictly construed because the question of timeliness of filing is jurisdictional’ ” (Pristell v State of New York, supra, quoting Roberts v State of New York, 11 AD3d 1000, 1001 [2004]). Moreover, “the remedy of permission to file a late claim contained in section 10 (6)” does not extend to inmate property claims brought pursuant to Court of Claims Act § 10 (9) (Roberts v State of New York, supra). Movant did not file a claim for lost or damaged personal property as required by Court of Claims Act § 10 (9). Thus, since late claim relief with respect to the loss of or damage to personal property is not available to movant, his motion must be denied.

Movant’s application for permission to file a late claim asserting a cause of action for assault and battery must also be denied. Pursuant to movant’s allegations, the assault and battery occurred on June 3, 2006 and, therefore, the accrual of a cause of action for assault and battery is June 3, 2006 (see Lynch v State of New York, Scuccimarra, J., #2007-030-553, Claim No. 108132, M-72868, CM-73011, August 29, 2007; Sternisha v State of New York, Scuccimarra, J., #2007-030-533, Claim No. 112891, M-72951, May 25, 2007). Court of Claims Act § 10 (3-b) provides, in relevant part, that
“[a] claim to recover damages for injuries to property or for personal injuries caused by the intentional tort of an officer or employee of the state while acting as such officer or employee . . . shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim.”

Here, movant served upon the attorney general a written notice of intention to file a claim on September 18, 2006, which was seventeen days after expiration of the time to do so pursuant to Court of Claims Act § 10 (3-b) (supra). Contrary to movant’s position, he is not required to exhaust his administrative remedies before commencing a claim for assault and battery (compare Court of Claims Act § 10 [9]).

Accordingy, it is hereby ordered that M-73529 is denied.



January 9, 2008
Albany, New York

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


Papers Considered
:
  1. Notice of Motion to File a Late Claim dated May 28, 2007;
  1. Affidavit in Support of Notice of Motion to File a Late Claim by Ubaldo Romero sworn to on May 14, 2007;
  1. Affirmation in Opposition by Michael T. Krenrich, AAG dated June 27, 2007;
  1. Reply Affidavit by Ubaldo Romero sworn to on June 5, 2007 with exhibits;
  1. Reply Affirmation in Opposition by Belinda A. Wagner, AAG dated July 25, 2007 with exhibit;
  1. Response Letter by Ubaldo Romero dated July 31, 2007 with exhibit; and
  1. Further Reply Affidavit by Ubaldo Romero sworn to on August 7, 2007.

[1]. According to movant, the CORC’s determination was appealed and the Acting Director of the Special Housing/Inmate Discipline Program determined that “the penalties imposed exceed[ed] the recommended guidelines for a weapon found in the inmate’s area of responsibility.” However, movant does not offer any proof in support of this aspect of his motion.
[2]. Movant does not offer any proof in support of this aspect of his motion either.