The following papers were considered on defendant’s motion for an order of
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,
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.
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.