New York State Court of Claims

New York State Court of Claims

LOCANTORE v. STATE OF NEW YORK, #2009-038-517, Claim No. 115410, Motion Nos. M-75382, CM-75558


Synopsis


Defendant’s motion to dismiss granted. Notwithstanding timely filing of the claim with the Court of Claims, claimant’s failure to serve a Notice of Intention to file a claim or the claim on the Attorney General within 90 days of accrual of the claim is a fatal jurisdictional defect.

Case Information

UID:
2009-038-517
Claimant(s):
ANTHONY LOCANTORE
Claimant short name:
LOCANTORE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115410
Motion number(s):
M-75382
Cross-motion number(s):
CM-75558
Judge:
W. BROOKS DeBOW
Claimant’s attorney:
KUCZINSKI, VILA & ASSOCIATES, LLPBy: Gregory Kuczinski, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael T. Krenrich, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 11, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This claim seeks damages for an alleged wrongful confinement in a State correctional facility. The claim alleges that after claimant was released from incarceration at the end of a determinate sentence upon his conviction of a crime, claimant’s conditional release to the Division of Parole for a five-year period of post-release supervision (PRS) was unlawful, and that his reincarceration for a period of five years upon a violation of that PRS was therefore unlawful. In lieu of answering the claim, defendant has moved to dismiss it on jurisdictional grounds. Although claimant filed a cross motion for leave to serve and file a late claim pursuant to Court of Claims Act §10(6) (CM-75558), he has withdrawn that motion, and requests that the papers submitted in support of the cross motion be considered in opposition to defendant’s motion. Defendant contends that claimant did not comply with Court of Claims Act §10(3) and

§11(a), which require, inter alia, that either a notice of intention to file a claim or the claim itself be served upon the Attorney General within 90 days after accrual of the claim. A claim for wrongful confinement accrues when the claimant is released from that confinement (see Collins v McMillan, 102 AD2d 860, 861 [2d Dept 1984]; Ramirez v State of New York, 171 Misc 2d 677, 680 [Ct Cl 1997]; Dorsey v State of New York, UID # 2004-015-426, Claim No. 106831, Motion Nos. M-68747 and CM-68865, Collins, J. [Sept. 10, 2004]). Service upon the Attorney General is complete when the notice of intention or claim is received in the office of the Attorney General (Court of Claims Act § 11[a][i]). Here, claimant’s papers reveal that he was released from the alleged unlawful confinement on or about March 23, 2008 (see Affidavit of Anthony Locantore, sworn to Sept. 19, 2008, ¶ 22), and thus, the 90-day period in which to serve the Attorney General expired on or about June 21, 2008. Although the claim was filed with the Court of Claims on June 20, 2008 (see Kuczinski Affirmation, dated Sept. 15, 2008, Exhibit D), defendant has demonstrated that the Attorney General was not served until July 7, 2008 (see Krenrich Affirmation, dated August 14, 2008, Exhibit A), a fact which claimant does not dispute. Thus, inasmuch as the claim was not served on the Attorney General within the time required by Court of Claims Act § 10(3) and § 11(a), the claim must be dismissed.

Claimant argues that as the claim was timely filed with the Court of Claims and as all other conditions for commencement of this action pursuant to the Court of Claims Act were met, claimant is in substantial compliance with the requirements of the Court of Claims Act. However, the filing and service requirements of the Court of Claims Act are jurisdictional in nature (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1999]), and must be strictly construed. Claimant must meet the literal service requirements of Court of Claims Act § 11 to invoke the Court’s jurisdiction (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Claimant’s failure to timely serve the Attorney General 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]). Accordingly, it is

ORDERED, that Motion No. M-75382 is GRANTED and Claim No. 115410 is DISMISSED.

February 11, 2009
Albany, New York

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

Papers considered
:


(1) Claim No. 115410, filed June 20, 2008;

(2) Notice of Motion to Dismiss, dated August 14, 2008;

(3) Affirmation of Michael T. Krenrich, AAG, in Support of Motion to Dismiss, dated

August 14, 2008, with Exhibit A;

(4) Notice of Cross Motion, dated September 15, 2008;

(5) Affirmation of Gregory Kuczinski, Esq., dated September 15, 2008, with Exhibits A-E;

(6) Affidavit of Anthony Locantore, sworn to September 19, 2008;

(7) Affirmation of Michael T. Krenrich, AAG, in Support of Motion to Dismiss, dated

October 8, 2008, with Exhibit A;

(8) Correspondence of Gregory Kuczinski, Esq., dated November 5, 2008.