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,
, 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 ; Matter of Dreger v New York State Thruway Auth.
AD2d 762, 762-763 [3d Dept 1991], affd
81 NY2d 721 ; 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
, 102 AD2d 860, 861 [2d Dept 1984]; Ramirez v State of New
, 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
Affirmation, dated Feb. 18, 2009, Exhibit A), a fact which claimant concedes
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
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.