New York State Court of Claims

New York State Court of Claims

WINFIELD v. THE STATE OF NEW YORK, #2008-015-035, Claim No. NONE, Motion No. M-74527


Inmate's motion for late claim relief or to treat his notice of intention as a claim was denied as untimely with respect to his intentional tort causes of action, and unnecessary with respect to his negligence cause of action.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Joaquin R. Winfield, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 13, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant, an inmate proceeding pro se, seeks permission to file a late claim pursuant to Court of Claims Act § 10 (6) or, in the alternative, to treat his notice of intention to file a claim as a claim pursuant to Court of Claims Act §10 (8) (a). It is uncontradicted that on March 12, 2007 the State was served by certified mail, return receipt requested with a notice of intention to file a claim (see notice of intention annexed as respondent’s Exhibit B and as a part of the movant's Exhibits) asserting damages arising out of the unauthorized imposition of a restricted diet from December 14, 2006 through December 20, 2006. Both the notice of intention and the proposed claim submitted in support of the motion indicate that a pre-hearing restricted diet was imposed upon the movant from November 27, 2006 through December 3, 2006 pursuant to 7 NYCRR § 304.2 (Directive 4933) following the issuance of a misbehavior report for conduct which occurred on November 25, 2006. One of the charges involved the movant’s alleged failure to return a lunch tray when directed to do so by Correction Officer Hamel. Section 304.2 states in relevant part:
(b) Inmates may be placed on a restricted diet in accordance with the provisions of Chapter V of this Title, for the following reasons:

* * *

(3) refusing to obey a direct order at the time of meal distribution or refusing to obey a direct order to return a food container or utensil at the conclusion of a meal, while assigned to SHU;

* * *

( c) The superintendent or his designee may issue a written order placing an inmate reported to have engaged in conduct described in subdivision (b) of this section on a restricted diet for no more than seven days pending the outcome of the inmate’s superintendent’s hearing. . . (emphasis added).
On December 13, 2006 Superintendent LaClair notified the movant and others in an Interdepartmental Communication that pursuant to a Tier III hearing held on December 7, 2006 the movant was again being placed on a restricted diet for seven days commencing with the morning meal on December 14, 2006 and ending December 20, 2006.

The crux of both the notice of intention and the proposed claim is that the movant completed the seven-day period of pre-hearing restricted diet and that the subsequently imposed period was unauthorized. He supports this contention by reference to the Superintendent Hearing Disposition sheet dated December 7, 2006, which reflects that movant was found guilty of interference with an employee (7 NYCRR 107.10) and refusing a direct order (7 NYCRR 106.10), and that the seven-day period of pre-hearing restricted diet commenced on November 27, 2006 and was completed on December 3, 2006. Movant contends that there is no indication on the hearing disposition sheet that an additional period of restricted diet was imposed as a result of the hearing (7 NYCRR § 254.7 [a] [iv]) and that the dietary restrictions imposed by the Superintendent on December 13, 2006 for the period December 14, 2006 through December 20, 2006 were therefore unauthorized under applicable rules and regulations. Causes of action for both ministerial negligence and intentional infliction of emotional distress are discernable from the proposed claim.

In opposition to the motion to file a late claim the respondent references a different claim (claim number 114788) and attaches a copy of a different motion (motion no. M-74528) (see ¶ 11 of Affirmation In Opposition dated March 10, 2008 and respondent’s Exhibit A). The respondent confirms, however, that the notice of intention regarding the proposed claim which is the subject of this motion was indeed sent by certified mail, return receipt requested and received on March 12, 2007 (see Notice of Intention with copy of envelope in which it was sent, respondent's Exhibit B). The proposed claim accrued on December 20, 2006 when the alleged improper diet restrictions ended and the movant’s damages were ascertainable (Local 851 of Intl. Bhd. of Teamsters v State of New York, 36 AD3d 672 [2007], lv denied 8 NY3d 811 [2007]; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687 [2000]; Augat v State of New York, 244 AD2d 835 [1997], lv denied 91 NY2d 814 [1998]). Pursuant to Court of Claims Act § 10 (3) a claim alleging the negligence or unintentional tort of a state officer or employee must be served and filed within ninety days following its accrual unless a notice of intention to file a claim is served within the same ninety day period. In the event a notice of intention is timely served "the claim shall be filed and served upon the attorney general within two years after the accrual of such claim". The notice of intention which was served on March 12, 2007 was therefore timely and extended the period in which to serve and file a claim for negligence or unintentional tort. Consequently, a claim alleging causes of action for negligence or unintentional tort may be served and filed any time prior to December 20, 2008.

Relative to that portion of the claim alleging intentional infliction of emotional distress, the Statute of Limitations applicable to such a cause of action is one year from the date of accrual (CPLR 215 [3]); Gary v New York Univ., 48 AD3d 235 [2008]). As the instant motion was not served until January 30, 2008, well after the expiration of one year following the claim's accrual on December 20, 2006, the Court is without authority to grant the requested late claim relief pursuant to Court of Claims Act § 10 (6) (Bergmann v State of New York 281 AD2d 731, 734 [2001]). For the same reason, movant's application to treat the notice of intention as a claim pursuant to Court of Claims Act § 10 (8) (a) must also be denied. Such relief is unavailable unless an application "is made upon motion 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 [8] [a]).

Based on the foregoing, the motion is denied as unnecessary with respect to the proposed unintentional tort causes of action and denied as untimely with respect to the intentional tort cause of action. Movant is advised to file and serve his claim in accordance with Court of Claims Act §§ 10, 11 and 11-a.

May 13, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

1. Notice of motion dated January 16, 2008;

2. Affidavit of Joaquin R. Winfield sworn to January 16, 2008 with exhibit;

3. Supporting exhibits of Joaquin R. Winfield filed February 27, 2008;

4. Affirmation of Michael T. Krenrich dated March 10, 2008 with exhibits.