New York State Court of Claims

New York State Court of Claims

DOES v. THE STATE OF NEW YORK, #2009-038-529, Claim No. 115428, Motion Nos. M-75705, CM-75851


Defendant’s motion to dismiss for failure to comply with substantive pleading requirements of Court of Claims Act § 11(b) granted - claim lacked sufficient detail of alleged illegal imposition of post-release supervision and wrongful confinement. Claimant’s cross motion to amend claim to correct jurisdictional defect denied as impermissible.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
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:
March 26, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


This claim alleges that the negligent acts of state employees resulted in claimant being illegally incarcerated for a period of approximately 351 days. Defendant moves to dismiss the claim on various grounds. Claimant opposes the motion and moves for permission to amend the claim. Defendant asserts that the claim was untimely pursuant to Court of Claims Act § 10(3), which requires that a claim alleging negligence or an unintentional tort by a State actor be filed and served upon the Attorney General within ninety days after the accrual of the claim. Defendant argues that although the pleading states that the claim arose on June 3, 2008, the pleading does not include sufficient facts to allow a determination of whether the claim did, in fact, accrue on that date, and thus, the claim cannot be determined to be timely (see Krenrich Affirmation, ¶ 5). The parties correctly agree that a cause of action for unlawful confinement accrues when the claimant is released from the allegedly unlawful confinement (see Santiago v City of Rochester, 19 AD3d 1061 [4th Dept 2005], lv denied 5 NY3d 710 [2005]; Caminito v City of New York, 25 AD2d 848, 849 [2d Dept 1966], affd 19 NY2d 931 [1967]). Claimant’s submissions in response to defendant’s motion and in support of his cross motion clarify that June 3, 2008 was the date upon which he was released from the allegedly unlawful incarceration (see Proposed Amended Claim, verified Nov. 17, 2008; Claimant’s Memorandum on Defendant’s Motion to Dismiss, dated Nov. 11, 2008). Accordingly, the claim, which was filed and served on June 25, 2008, was timely.

Defendant further contends that the claim must be dismissed as jurisdictionally defective because it fails to comply with the substantive pleading requirements set forth in Court of Claims Act § 11(b), which requires that “[t]he claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and ... the total sum claimed.” These pleading requirements are substantive conditions on the State’s waiver of sovereign immunity (see Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003]). To satisfy Court of Claims Act § 11(b), the facts set forth in the claim must be sufficiently definite “ ‘to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances’ ” (id. at 207, quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). The State is not required to review its records to ascertain information that may be implied by the pleading, as the State is not required to “ferret out or assemble information that section 11(b) obligates the claimant to allege” (id., at 208). Failure to comply with the substantive pleading requirements is a jurisdictional defect that requires dismissal of the claim (see id., at 209; Kolnacki v State of New York, 8 NY3d 277, 281 [2007]).

The claim alleges the following facts:

The claim is for damages sustained by the Claimant through the negligent acts of employees of the State of New York, who illegally calculated and imposed a term of post-release supervision concerning claimant which led to his illegal incarceration for approximately 351 days.

The time when the claim arose and the time when the injuries were sustained was approximately June 3, 2008.

The particular place of the commencement of the sustaining of the injuries resulting in this claim was the Department of Correctional Services, State Office Building, State Campus, 1220 Washington Avenue, Albany, New York.

The ad damnum clause of the claim states damages in the amount of $250,000.00.

These pleaded facts generally alert defendant that claimant believes there was an illegality or error in the calculation and imposition of a term of post-release supervision due to the negligence of state employees, and that claimant was wrongfully incarcerated for a period of approximately 351 days. One familiar with this particular area of sentencing law could surmise that claimant is asserting a claim due to the imposition of post-release supervision by the Department of Correctional Services (DOCS) in a situation where the court that initially sentenced claimant did not pronounce a period of post-release supervision that was required by law (see Penal Law § 70.45; Matter of Garner v New York State Dept. Of Correctional Servs., 10 NY3d 358 [2008]; People v Sparber, 10 NY3d 457 [2008]), however the claim itself does not make it clear that such is the nature of the claim. Moreover, the lack of additional information leaves it to defendant to “ferret out” information about the nature of the claim and when it arose. Specifically, the claim does not set forth the crime of which claimant was convicted, when he was sentenced and by which court, which, if any, provisions of Penal Law § 70.45 control claimant’s sentence of post-release supervision, or when DOCS allegedly imposed the period of post-release supervision. Moreover, the claim offers no details about how and where claimant came to be wrongfully incarcerated for approximately 351 days. While claimant opposes defendant’s motion on the ground that the initial pleading satisfies Court of Claims Act § 11(b) because it is “complete in all respects” (Clamant’s Notice of Cross-Motion and Response to Defendant’s Motion to Dismiss, ¶ 4), the pleading deficiencies in the initial claim are made apparent by review of the content of claimant’s proposed Amended Claim and its exhibits (see id.). In sum, the Court concludes that the initial claim does not satisfy the substantive pleading requirements of Court of Claims Act § 11(b), and thus, defendant’s motion to dismiss the claim must be granted.

Turning to claimant’s cross motion to amend the claim, a jurisdictional pleading defect may not be cured by amendment of the claim (see Hogan v State of New York, 59 AD3d 754 [3d Dept 2009]; Roberts v State of New York, 4 Misc 3d 768, 774 [Ct Cl 2004]). Accordingly, claimant’s cross motion must be denied.[1]

In light of the foregoing conclusions, defendant’s contention that the claim should be dismissed for failure to state a cause of action need not be discussed. Thus, it is

ORDERED, that defendant’s Motion No. M-75705 is GRANTED, and Claim No. 115428 is DISMISSED, and it is further

ORDERED, that claimant’s Cross Motion No. CM-75851 is DENIED.

March 26, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Verified Claim, filed June 25, 2008;

(2) Verified Answer, filed August 4, 2008;

(3) Notice of Motion, dated October 20, 2008;

(4) Affirmation in Support of Defendant’s Motion to Dismiss of Michael T. Krenrich, AAG, dated October 20, 2008, with Exhibits A-C;

(5) Claimant’s Memorandum on Defendant’s Motion to Dismiss on Immunity Grounds, dated November 11, 2008;

(6) Notice of Cross-Motion and Response to Defendant’s Motion to Dismiss, dated November 18, 2008;

(7) Proposed Amended Claim, verified November 17, 2008, with exhibits;

(8) Affirmation of Michael T. Krenrich, AAG, in Reply and in Response to Defendant’s [sic] Cross-Motion, dated December 15, 2008, with Exhibit 1.

[1]. It appears, however, that claimant is within the time frame to submit a motion for permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6).