New York State Court of Claims

New York State Court of Claims

BERARD v. THE STATE OF NEW YORK, #2009-015-180, Claim No. 116170, Motion No. M-76416


Synopsis


Claim was dismissed as untimely without opposition.

Case Information

UID:
2009-015-180
Claimant(s):
FREDERICK BERARD
Claimant short name:
BERARD
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116170
Motion number(s):
M-76416
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Frederick Berard, Pro SeNo Appearance
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 26, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves for dismissal of the claim pursuant to CPLR 3211 (a) (2) and (8) and Court of Claims Act §§ 10 (3) and 11 on the ground that the claim was untimely served. Claimant, an inmate proceeding pro se, seeks damages for the following:
"The said damages for which the claim is hereby made occurred when claimant was incarcerated for a violation of post release supervision by the New York State Division of Parole in Warren County Correctional Facility. In fact claimant had not been as of yet sentenced to post release supervision and was unlawfully imprisoned by the New York State Division of Parole" (see defendant's Exhibit A, Notice of Claim, ¶ 4).

Claimant further alleges that the claim arose and damages were sustained in "Jun[e] through August 8th, 2008 when in the County of Warren, State of New York."

Court of Claims Act § 10 (3) requires that a claim be filed and served within ninety days of the date it accrues unless a notice of intention is served within that period. In support of its motion for dismissal, defense counsel contends that the claim was not served until December 8, 2008. A copy of the envelope in which the claim was mailed confirms that it was served by certified mail, return receipt requested and received by the defendant on December 8, 2008 (see defendant's Exhibit A). The claim was filed on the same date.

The law is well settled that a claim for wrongful confinement accrues on the date the confinement ends (Ramirez v State of New York, 171 Misc 2d 677 [1997]; see also Collins v McMillan, 102 AD2d 860 [1984]). Here, the claim alleges accrual during a period ending on August 8, 2008 and the claimant has failed to oppose the motion. Consequently, assuming as claimant alleges that the claim accrued no later than August 8, 2008, it is untimely.

The defendant established that the claim was served and filed more than 90 days following its accrual. The motion to dismiss the claim is therefore granted, without opposition.



June 26, 2009
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated January 15, 2009;
  2. Affirmation of Michael T. Krenrich dated January 15, 2009 with exhibit.