Claim alleging wrongful confinement in Special Housing Unit was dismissed as untimely.
|Claimant short name:||RUSSO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Joseph Russo, Pro Se
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: James E. Shoemaker, AAG
|Third-party defendant's attorney:|
|Signature date:||November 5, 2009|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim of Joseph Russo on the grounds that neither the claim nor a notice of intention was served within 90 days of accrual.
In his claim, Mr. Russo alleges that he was wrongly confined in the Special Housing Unit ("SHU") at Woodbourne Correctional Facility from August 19, 2004 until November 4, 2004. A claim for wrongful confinement in the SHU accrues on the date when claimant is released from such confinement, i.e., in this case, on November 4, 2004. See, e.g., Brownlee v State of New York, Ct Cl, August 14, 2009 (unreported, motion no. M-76853, UID #2009-040-065(1) , McCarthy, J.).
Whether Russo's claim is construed as arising in negligence or intentional tort, §10 of the Court of Claims Act requires that either the claim or a notice of intention be served within 90 days of accrual, i.e., by February 2, 2005. Claimant, who did not oppose this motion, does not dispute defendant's assertion that he did not serve a notice of intention until February 14, 2005, after which he served a claim on March 31, 2005.
"It is well established that compliance with sections 10 and 11 of the Court of Claims Act pertaining to the timeliness of filing and service requirements respecting claims and notices of intention to file claims constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and accordingly, must be strictly construed . . ." Byrne v State of New York, 104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d 607, 488 NYS2d 1023 (1985) (citations omitted). See also Mallory v State of New York, 196 AD2d 925, 601 NYS2d 972 (3d Dept 1993). In view of the foregoing, this court lacks jurisdiction over the claim of Joseph Russo.
Accordingly, having reviewed the submissions(2) , IT IS ORDERED that motion no. M-77135 be granted and claim no. 110803 be dismissed.
November 5, 2009
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. This and other decisions of the Court of Claims may be found on the court's website: www.nyscourtofclaims.state.ny.us
2. The court reviewed defendant's notice of motion with affirmation in support and exhibits A through E. Claimant filed no opposition papers.