New York State Court of Claims

New York State Court of Claims

MCMILLIAN v. STATE OF NEW YORK, #2008-039-094, Claim No. 111536, Motion Nos. M-74728, M-71786


Synopsis


Defendant’s motion to dismiss the claim pursuant to Court of Claims Act §§ 10 and 11 based upon, among other things, lack of jurisdiction is granted. Each of claimant’s various causes of action arise out of a single altercation. The proof before the Court establishes that the attorney general received service of the notice of intention to file a claim one day after expiration of the statutory deadline.

Case Information

UID:
2008-039-094
Claimant(s):
FREDERICK W. MCMILLIAN (91-B-2347)
Claimant short name:
MCMILLIAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111536
Motion number(s):
M-74728, M-71786
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Frederick W. McMillian, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Paul F. CaginoAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 18, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On June 10, 2005, claimant served upon defendant a notice of intention to file a claim. Thereafter, on October 24, 2005, defendant received service of the claim. Issue was joined, and defendant now moves the Court for an order dismissing the claim pursuant to Court of Claims Act §§ 10 and 11 based upon, among other things, lack of jurisdiction, immunity and failure to state a cause of action. Claimant opposes the motion and moves the Court for an order compelling defendant to produce various items of discovery. Defendant opposes claimant’s motion.

Claimant alleges, among other things, that defendant is liable for injuries he sustained on March 11, 2005 while an inmate at Clinton Correctional Facility Annex when he was involved in a physical altercation with a correction officer and that, based upon fabricated misbehavior reports, was confined to the prison’s disciplinary unit. Claimant also alleges that prison officials failed to provide adequate medical treatment for injuries he sustained as a result of the March 11, 2005 altercation, forced him to undergo urinalysis in retaliation for his complaints to prison officials regarding the March 11, 2005 altercation, improperly conducted the disciplinary proceeding that was held in connection with the March 11, 2005 altercation and, while detained in the disciplinary unit following the March 11, 2005 altercation, placed him in a double bunk cell that was not in compliance with DOCS minimum requirements and denied him access to the law library and other legal materials.

The claim sets forth ten causes of action in connection with the foregoing allegations including, among other things, assault, negligence in failing to take administrative action, violations of the New York State Constitution based upon the alleged retaliatory conduct of defendant, conspiracy to falsify records, failure to provide adequate medical care, cruel and unusual punishment, wrongful confinement and obstruction of access to the law library.

Court of Claims Act §10 (3) provides, in relevant part, that a claim must 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 two years after the accrual of such claim.” It is well settled 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, 40 AD3d 1198, 1198 [2007], quoting Roberts v State of New York, 11 AD3d 1000, 1001 [2004]; see also Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]).

Based upon the foregoing principles, the Court concludes that it is without jurisdiction of the claim. The Court finds that each of claimant’s various causes of action arise out of the March 11, 2005 altercation. Pursuant to Court of Claims Act § 10 (3), supra, claimant was required to serve his notice of intention to file a claim upon the attorney general no later than June 9, 2005, or within ninety days after the accrual of the claim. The proof before the Court establishes that the attorney general received service of claimant’s notice of intention to file a claim on June 10, 2005, one day following expiration of the statutory deadline. Accordingly, the Court is constrained to find that it is without jurisdiction of the claim.

Additionally, to the extent that claimant sets forth causes of action for money damages based upon defendant’s failure to provide him with access to the law library or adequate cell furnishings, the Court notes that no such private civil action is justiciable in the Court of Claims (see Ritchie v State of New York, March 5, 2008, Scuccimarra, J., claim no. 114601, UID #2008-030-513, claim no. 114601, M-74482). The Court further notes that retaliation claims and challenges to claimant’s prison disciplinary proceeding are properly addressed through the inmate grievance procedure and the direct appeal process (see Civil Practice Law and Rules § 7801 et seq.; Guy v State of New York, 18 AD3d 936, 937 [2005]; Jacoby v State of New York, February 16, 2007, Moriarty, III., J., UID #2007-037-009, claim no. 112544, M-72649, CM-72687).

Accordingly, it is hereby

ORDERED that M-74728 is granted and the claim is dismissed; and it is further

ORDERED that M-71786 is denied.


September 18, 2008
Albany, New York

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


Papers Considered
:
  1. Notice of Motion dated May 15, 2006;
  2. Claimant’s Affidavit in Support of a Motion to Compel Discovery and For Imposition of Sanctions sworn to on May 15, 2005 [sic];
  3. Affirmation in Opposition by Paul F. Cagino, AAG dated June 23, 2006;
  4. Claimant’s Reply dated July 16, 2006;
  5. Notice of Motion dated March 27, 2008;
  6. Affirmation in Support by Paul F. Cagino, AAG dated March 27, 2008 with exhibits; and
  7. Claimant’s Affidavit sworn to on April 15, 2008 with exhibits.