New York State Court of Claims

New York State Court of Claims

RUSSELL v. THE STATE OF NEW YORK, #2009-038-550, Claim No. 116089, Motion Nos. M-76272, CM-76373


Synopsis


Defendant’s motion to dismiss granted; claim timely filed but not served upon Attorney General within 90 days of accrual. Cross motion for late claim relief denied because proposed claim did not accompany motion as required by Court of Claims Act § 10(6).

Case Information

UID:
2009-038-550
Claimant(s):
JOSEPH RUSSELL
1 1.The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
RUSSELL
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116089
Motion number(s):
M-76272
Cross-motion number(s):
CM-76373
Judge:
W. BROOKS DeBOW
Claimant’s attorney:
KRISTIAN J. CHESTNUT, 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:
June 24, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

In a claim filed with the Clerk of the Court of Claims on November 17, 2008, claimant seeks compensation for unlawful restraint and wrongful incarceration for the period of August 5, 2005 through August 21, 2008. The claim asserts that claimant was unlawfully placed on post-release supervision (PRS) following a period of incarceration even though the sentencing judge did not include such a period of supervision in his sentence, that claimant was subject to parole supervision for approximately two years, and that he was wrongfully incarcerated for approximately one year upon a violation of the conditions of his PRS. Defendant moves to dismiss the claim for lack of jurisdiction, and claimant cross-moves pursuant to Court of Claims Act § 10(6) for permission to file and serve a late claim. Court of Claims Act §10(3) and §11(a) require, inter alia, that the claim or a notice of intention to file a claim be served upon the Attorney General within 90 days after accrual of the claim. It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional in nature, and that the failure to timely serve the claim upon the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Locantore v State of New York, UID #2009-038-517, Claim No. 115410, Motion Nos. M-75382, CM-75558, DeBow, J. [Feb. 11, 2009]). 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, the claim alleges that claimant was released from the alleged unlawful confinement on or about August 21, 2008, and thus, the 90-day period in which to serve the claim upon the Attorney General expired on November 19, 2008. Although the claim was filed with the Court of Claims on November 17, 2008, defendant has demonstrated that the Attorney General was not served until January 12, 2009 (see Krenrich Affirmation, dated Feb. 18, 2009, Exhibit A), a fact which claimant concedes (see Correspondence of Kristian J. Chestnut, Esq., undated, received Jan. 26, 2009). 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 is jurisdictionally defective and must be dismissed.[2]

Turning to claimant’s cross motion to file and serve a late claim pursuant to Court of Claims Act §10(6), that section requires that such a motion be accompanied by the proposed claim, which the instant cross motion is lacking. Although one might infer that claimant intends to file and serve the same claim that was previously filed, his motion does not state such an intention, and the lack of compliance with Court of Claims Act § 10(6) is a jurisdictional defect that requires denial of the motion (see Davis v State of New York, 28 AD2d 609 [3d Dept 1967]; DiBacco v State of New York, 57 Misc 2d 832, 834 [Ct Cl 1968]; Thompson v State of New York, UID # 2008-044-577, Motion No. M-75176, Schaewe, J. [Sept. 9, 2008]). Accordingly, it is

ORDERED, that defendant’s motion No. M-76272 is GRANTED, and claim No. 116089 is DISMISSED, and it is further

ORDERED, that claimant’s cross motion No. CM-76373 is DENIED.

June 24, 2009
Albany, New York

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


Papers considered
:


(1) Claim No. 116089, filed November 17, 2008;

(2) Notice of Motion (M-76272), dated February 18, 2009;

(3) Affirmation of Michael T. Krenrich, AAG, dated February 18, 2009, with Exhibit A;

(4) Affidavit of Service of Kristian J. Chestnut, Esq., filed January 26, 2009;

(5) Affirmation of Kristian J. Chestnut, Esq., in Reply in Opposition to Motion to Dismiss,

dated March 9, 2009;

(6) Notice of Motion (CM-76373), dated March 9, 2009;

(7) Affirmation of Kristian J. Chestnut, Esq., dated March 9, 2009, with Exhibits 1-3;

(8) Affirmation of Michael T. Krenrich, AAG, in Support of Motion to Dismiss [sic], dated March 25, 2009.


[2]. Claimant’s contention that the claim was timely served because the service on the Attorney General within 120 days of the filing of the claim complies with CPLR 306-b is without merit. That provision is inapplicable to the service of a claim against the State, as Court of Claims Act §§ 11(a) and 10(3), which have jurisdictional effect, supercede the CPLR with respect to the time for service of claims filed in the Court of Claims (see Louis v State of New York, UID # 2007-030-568, Claim No. 113661, Motion No. M-73552, Scuccimarra, J. [Sept. 19, 2007]).