|Claimant short name:||CONTE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||James J. Lack|
|Claimant's attorney:||Massimo & Panetta, P.C.
By: Frank C. Panetta, Esq.
|Defendant's attorney:||Andrew M. Cuomo, New York State Attorney General
By: Kimberly A. Kinirons, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 31, 2009|
|See also (multicaptioned case)|
This is a claim brought by Robert Conte (hereinafter "claimant") for alleged injuries due to false imprisonment, malicious prosecution and harassment by defendant through the actions of his parole officer. According to the claim, the incidents took place on November 15, 2006 and throughout claimant's time on parole. The only reference as to where any conduct took place is a parole hearing which occurred at the Nassau County Jail, East Meadow, New York.
After serving a prison sentence, claimant was discharged to parole supervision on May 22, 2006. Claimant alleges his parole officer acted in an abusive manner toward him, threatened him and imposed impossible and unreasonable conditions upon him. Claimant was charged with a parole violation on October 31, 2006. On November 15, 2006, a hearing was held at the Nassau County Jail and the parole violation was dismissed.
Defendant moves to dismiss the claim for several reasons(1) . First, defendant argues the claim is untimely. The only definite date referenced in the claim is November 15, 2006. The claim was served upon defendant on February 14, 2007, which is 91 days after the alleged date the claim arose. Defendant also moves to dismiss on the grounds the claim is jurisdictionally defective in that it fails to provide reasonable notice as to some of the allegations contained within the claim. The claim makes reference to several incidents of abuse and/or harassment. However, there is no reference as to when or where these incidents took place. Lastly, defendant asks for the claim to be dismissed based upon immunity of the parole board and the parole officer.
Claimant opposes defendant's motion and cross-moves for an order: compelling defendant to accept claimant's supplemental bill of particulars; sanctions for defendant's failure to turn over necessary and known discovery; and dismissal of defendant's affirmative defenses(2) .
The requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, aff'd 52 NY2d 849). The purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts and prepare a defense. There must be sufficient detail to enable the State to investigate (Schwartzberg v State of New York, 121 Misc 2d 1095, aff'd 98 AD2d 902). Pursuant to the Court of Claims Act, a claim must include the time when and place where the claim arose, the nature of the claim, and items of damage or injuries sustained. The allegations must provide defendant with sufficient notice of each occurrence alleged so the State can conduct a prompt investigation of each occurrence (Lepkowski v State of New York, 1 NY3d 201). If the original document does not include all that is essential to constitute a claim, the document is jurisdictionally defective (Grande v State of New York, 160 Misc 2d 383) and the claim is subject to dismissal even if there is no prejudice to defendant (Byrne v State of New York, 104 AD2d 782 lv denied 64 NY2d 607).
Court of Claims Act §10(3-b) states a claim to recover for the intentional torts of defendant's employees must be served upon the Attorney General's Office and filed in the clerk's office within 90 days of occurrence, unless a notice of intention has been served. If a notice of intention has been served upon the Attorney General's Office, then claimant must serve and file the claim within one year of the date of occurrence.
The only date referenced by claimant is November 15, 2006. The Court previously found this to be the date of occurrence (M-75251). Claimant argues defendant cannot argue the claim is late because a motion for a late claim was previously filed and defendant made no objection to the timeliness of the claim at that time.(3) However, the necessity of a motion for a late claim recognizes the lateness of the claim. In addition, the motion was denied as moot and the original claim continued.
There is no question the claim was served 91 days after November 15, 2006. However, claimant argues the claim stated the behavior occurred prior to November 15, 2006 and continues. Claimant argues the behavior was ongoing and thus, the claim is timely.
The claim is devoid of any reference to a date or place as to any of the allegations which form the foundation for claimant's lawsuit. Without the inclusion of these elements, the claim is jurisdictionally defective. Claimant's cross-motion to supplement his bill of particulars would not cure a jurisdictionally defective claim. Claimant cannot amend the claim to cure a jurisdictionally defective claim. Thus, even if the Court were to accept the tortious conduct continued passed November 15, 2006, the claim itself is defective. The Court need not reach defendant's remaining grounds for dismissal.
Based upon the foregoing, defendant's motion to dismiss the claim is granted. Claimant's cross-motion is denied in its entirety as moot.
December 31, 2009
Hauppauge, New York
James J. Lack
Judge of the Court of Claims
1. The following papers were read and considered on defendant's motion: Notice of Motion for Summary Judgment dated June 29, 2009 and filed June 30, 2009; Affirmation in Support of Summary Judgment of Kimberly A. Kinirons, Esq. with annexed Exhibits A-G dated June 29, 2009 and filed June 30, 2009.
2. The following papers were read and considered on claimant's cross-motion: Notice of Cross Motion dated August 21, 2008 [sic] and filed August 24, 2009; Affirmation in Opposition to Motion for Summary Judgment and in Support of Cross Motion of Frank C. Panetta, Esq. with annexed Exhibits A-L dated August 21, 2009 and filed August 24, 2009; Affidavit in Opposition to Motion for Summary Judgment and in Support of Cross Motion of Robert Conte sworn to August 21, 2009 and filed August 24, 2009; Affirmation in Opposition to Cross Motion of Kimberly A. Kinirons, Esq. with annexed Exhibits A-B dated October 9, 2009 and filed October 13, 2009; Reply of Kimberly A. Kinirons, Esq. dated October 13, 2009 and filed October 16, 2009.
3. Claimant's motion for a late claim was due to the failure to include an ad damnum clause in the claim. As that requirement was changed by legislation, the motion was denied as moot.