New York State Court of Claims

New York State Court of Claims

DUNNIGAN v. THE STATE OF NEW YORK, #2008-009-006, Claim No. 114402, Motion No. M-74291


Synopsis


This claim alleging wrongful confinement, was dismissed upon defendant’s pre-answer motion for untimely service and filing.

Case Information

UID:
2008-009-006
Claimant(s):
RICHARD W. DUNNIGAN
Claimant short name:
DUNNIGAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114402
Motion number(s):
M-74291
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
RICHARD W. DUNNIGAN, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
January 28, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this pre-answer motion to dismiss this claim based upon untimely service.

The following papers were considered by the Court in connection with this motion:
Pre-Answer Motion, Affirmation, with Exhibits 1,2


“ Reply Affidavit” 3

In his claim, claimant alleges that he suffered damages due to his wrongful confinement in the Special Housing Unit (“SHU”) at Mid-State Correctional Facility, following the issuance of a Tier III disciplinary report and subsequent finding of guilt at a disciplinary hearing. As a result of the alleged wrongful confinement, claimant alleges that he suffered emotional pain, isolation and punishment, that he was removed from his work assignment as a law clerk in the prison law library, and that he was also transferred from a correctional facility that was relatively close to his family. It is undisputed that claimant was first confined to SHU on January 25, 2007, after he was issued a disciplinary report, and that he remained confined there until his release from SHU on April 26, 2007. Claimant filed an administrative appeal of the determination made at his disciplinary hearing, and that decision was ultimately administratively reversed on September 5, 2007. This claim was served upon the Attorney General on October 24, 2007, and was filed the same day with the Clerk of the Court of Claims.

As indicated above, defendant now seeks dismissal of this claim based upon untimely service and filing. Defendant contends that claimant’s cause of action for wrongful confinement accrued on the day that he was released from SHU (April 26, 2007), while claimant contends that his cause of action accrued on the day when the determination made at his disciplinary hearing was reversed (September 5, 2007).

A cause of action for wrongful confinement within a prison setting is considered a “species” of false imprisonment (Gittens v State of New York, 132 Misc 2d 399, 407). A cause of action for false imprisonment (and therefore wrongful confinement as well) accrues on the date that the imprisonment ends (Boose v City of Rochester, 71 AD2d 59; see also 59 NYJur 2d, False Imprisonment and Malicious Prosecution § 126). Therefore, this claim, alleging wrongful confinement within a prison setting, accrued on the date that claimant’s confinement ended, which was April 26, 2007 (Ramirez v State of New York, 171 Misc 2d 677). As a result, the claim had to be served and filed[1] within 90 days of claimant’s release from SHU on April 26, 2007. As a result, the claim had to be served and filed by July 25, 2007. Documentary evidence has established that the claim was not served upon the Attorney General until October 24, 2007, and the records of this Court also establish that the claim was filed with the Clerk of the Court of Claims on the same date. This claim, therefore, was not timely served or filed.

It is well settled that “nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary” (Kolnacki v State of New York, 8 NY3d 277, 281, rearg denied 8 NY3d 994; Lepkowski v State of New York, 1 NY3d 201, 206-207; Dreger v New York State Thruway Auth., 81 NY2d 721, 724). Claimant’s failure to comply with the jurisdictional requirements as to service and filing requires that this claim be dismissed.

In his affidavit submitted in opposition to this motion, claimant also requested this Court to consider a late claim application pursuant to § 10(6) of the Court of Claims Act. This applicaiton, however, was not accompanied by a notice of cross-motion as required by CPLR Rule 2215, nor was it made in compliance with Court of Claims Act § 10(6), which requires that any such application be made “upon motion returnable at any regular or special session of the court”. Claimant, by affirmatively requesting late claim relief as a defense to defendant’s motion to dismiss, has not made his request in the proper manner, and has not provided proper notice to the Attorney General which would then afford the State an opportunity to respond. Accordingly, this Court finds that claimant’s request for late claim relief, made in his responsive affidavit, is not properly before the Court and cannot be considered at this time.

Based on the foregoing, it is therefore

ORDERED, that Motion No. M-74291 is hereby GRANTED; and it is further

ORDERED, that Claim No. 114402 is hereby DISMISSED.


January 28, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1]. Claimant does not contend, nor is there any indication, that a notice of intention to file a claim was served upon the Attorney General, as permitted by Court of Claims Act § 10(3).