New York State Court of Claims

New York State Court of Claims

PULECIO v. THE STATE OF NEW YORK, #2008-028-503, Claim No. 108229, Motion No. M-71981


Synopsis



Case Information

UID:
2008-028-503
Claimant(s):
VICTOR PULECIO
Claimant short name:
PULECIO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108229
Motion number(s):
M-71981
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
VICTOR PULECIO, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERAL
BY: Saul Aronson, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 11, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were considered on defendant’s motion for an order of dismissal:

1. Notice of Motion and Supporting Affirmation of Saul Aronson, Esq., AAG with annexed Exhibits A-C;


2. Claim, filed September 4, 2003;


3. Answer, filed October 7, 2003

Claimant, Victor Pulecio (Claimant), filed this claim on September 4, 2003 alleging, inter alia, that as a result of the negligent investigation of a misbehavior report where he had been charged with violating a directive against receiving any form of compensation for providing legal assistance to other inmates, he was wrongfully confined from June 27, 2002 until August 11, 2002.[1] Claimant’s disciplinary determination was administratively reversed on July 1, 2003. Defendant, State of New York (defendant), answered the claim and subsequently moved to dismiss it upon the grounds that it is untimely and that the claim was served by ordinary mail. Claimant has not responded to defendant’s motion.

Based on a review of the filed claim and its annexed exhibits as well as defendant’s motion papers, it is clear that claimant served a notice of intention upon defendant by certified mail, return receipt requested on August 14, 2003. He thereafter served his claim upon defendant on September 5, 2003 and such was filed with the Court on September 4, 2003. Neither of these acts was completed within the 90-day period prescribed by Court of Claims Act § 10 (3).

While claimant served his notice of intention and claim within 90 days of his administrative reversal, the date claimant deemed his claim to have accrued (Claim, ¶ 27), he failed to serve and file such within 90 days of his release from confinement.[2] A claim for wrongful confinement within a prison setting such as this does not accrue upon the administrative reversal of the underlying disciplinary charge. It accrues when damages are reasonably ascertainable, that is, when the claimant is released from confinement (see Lewis v State of New York, UID # 2007-028-560, Claim No. 113060 [Ct Cl July 16, 2007], Sise, P.J.; Small v State of New York, UID # 2000-019-019, Claim No. 96889 [Ct Cl Aug. 17, 2000], Lebous, J.).

“A cause of action for wrongful confinement . . . is recognized as a ‘species’ of false imprisonment (Gittens v State of New York, 132 Misc 2d 399, 407 [Ct Cl 1986]), and a cause of action for false imprisonment accrues on the date that the imprisonment or confinement ends . . . Consequently, causes of action for wrongful confinement within a prison setting also accrue on the date the confinement ends” (Lewis v State of New York, id. [citations omitted]).

Accordingly, since Claim No. 108229 is untimely and such defense was properly preserved in defendant’s Answer (Court of Claims Act § 11 [c]), defendant’s motion is granted and the claim is hereby dismissed.



January 11, 2008
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1].The claim also alleges that he was confined from June 27, 2002 until July 15, 2002.
[2].The court notes that defendant also argues that the claim was defective in that it was served by ordinary mail as opposed to certified mail, return receipt requested.