New York State Court of Claims

New York State Court of Claims

SMITH v. STATE OF NEW YORK & ANO., #2009-038-509, Claim No. 115381, Motion No. M-75685


Synopsis


Defendant’s motion to dismiss on jurisdictional grounds granted. Claimant served a Notice of Intention to File a claim more than 90 days after accrual of the claim. Claimant’s assertion that DOCS personnel refused to post his legal mail does not excuse strict compliance with service requirements of the Court of Claims Act.

Case Information

UID:
2009-038-509
Claimant(s):
HEKIMA SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115381
Motion number(s):
M-75685
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
HEKIMA SMITH, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
Belinda A. Wagner, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 26, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an individual who was previously incarcerated in a State correctional facility, filed this claim on June 13, 2008, seeking damages for an allegedly wrongful confinement in a Special Housing Unit (SHU) while he was an inmate. Defendant moves to dismiss the claim on jurisdictional grounds, asserting that claimant did not timely serve upon the Attorney General a notice of intention to file a claim or a claim. Court of Claims Act sections 11(a) and 10(3) require that a claim or a notice of intention to file a claim be served upon the Attorney General within 90 days after accrual of the claim. Service of such documents is not complete until they are received in the Office of the Attorney General (Court of Claims Act § 11[a][i]). It is well established that the filing and service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]) and that the failure to comply with those requirements is a jurisdictional defect requiring dismissal of the claim (see id.; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]).

A cause of action for wrongful confinement accrues on the date the allegedly wrongful confinement ends (see Pulecio v State of New York, UID # 2008-028-503, Claim No. 108229, Motion No. M-71981, Sise, P.J. [Jan. 11, 2008]). Here, the claim alleges that claimant was released from the SHU on October 17, 2007. Thus, the claim or a notice of intention to file a claim was required to have been received by the Attorney General no later than January 15, 2008. Defendant’s submission demonstrates that claimant’s Notice of Intention to File a Claim was postmarked on January 23, 2008 and was not received by the Attorney General until January 25, 2008 (see Wagner Affirmation, Exhibit A). Accordingly, defendant’s motion to dismiss the claim must be granted.

Claimant essentially invokes the doctrine of equitable estoppel in opposing the motion on the ground that his papers would have been timely served but for an alleged refusal by Department of Correctional Services (DOCS) personnel to send out his legal mail. The doctrine of equitable estoppel may be applied to excuse a failure to timely serve in limited circumstances where there is misfeasance or malfeasance on the part of DOCS personnel in processing mail (see Rivera v State of New York, 5 AD3d 881 [3d Dept 2004]). Claimant’s submission, however, does not demonstrate that there was misfeasance or malfeasance on the part of DOCS officials in processing his mail. To the contrary, claimant’s submission indicates that his legal mail was not sent out because his inmate account was frozen concomitant to a commissary purchase (Affidavit in Opposition of Hekima Smith, Attachments), and claimant proffers no other reason for the alleged delay by DOCS in mailing his papers. Therefore, the doctrine of equitable estoppel does not apply to excuse claimant’s failure to timely serve the Attorney General with his Notice of Intention to File a Claim. Accordingly, it is

ORDERED, that Motion No. M-75685 is GRANTED, and Claim No. 115381 is DISMISSED.

January 26, 2009
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Claim, filed June 13, 2008;

(2) Notice of Motion to Dismiss, dated July 10, 2008;

(3) Affirmation of Belinda A. Wagner, AAG, dated July 10, 2008, with Exhibits A-B;

(4) Affidavit in Opposition of Hekima Smith, sworn to July 22, 2008, with attachments.