New York State Court of Claims

New York State Court of Claims

RAFFONE v. THE STATE OF NEW YORK, #2009-038-551, , Motion No. M-76461


Motion for late claim relief denied; proposed claim did not state the time when the claim arose, and thus the Court could not determine whether the motion was necessary. Further omissions in claimant’s papers prevented Court from considering all of the factors set forth in Court of Claims Act § 10(6).

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:
June 25, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks permission pursuant to Court of Claims Act § 10(6) to file and serve a late claim. The proposed 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, and seeks compensation for two periods of wrongful confinement following violations of PRS. The proposed claim specifically alleges that claimant was wrongfully incarcerated for a period of one year commencing on July 23, 2006, and for a period of three months commencing on April 23, 2008. In his affidavit in support of the motion, claimant asserts that a Justice of the Kings County Supreme Court ordered that he be released from custody on or about July 29, 2008, and that the same Justice issued a re-sentencing order dated November 25, 2008, which stated that “[a]ny pending violation or prior revocation of a [wrongfully] assessed period of PRS is deemed a nullity and is vacated” (Affidavit of Joseph Raffone, sworn to March 25, 2009, Exhibit 5). Claimant alleges that he “filed” a Notice of Intention to File a Claim on February 5, 2009 (id. at ¶ 9), and defendant acknowledges that a notice of intention to file a claim was served on the Attorney General on that same date (see Krenrich Affirmation, ¶ 4). By this motion, claimant seeks permission to file a late claim “in case” his claim is not timely (see Raffone Affidavit, ¶ 9). Court of Claims Act § 10(3) requires that this claim “shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.” In opposition to claimant’s motion, defense counsel appears to concede that in this case, the claim accrued on November 25, 2008 when claimant obtained an order that declared his prior revocations to be nullities (see Krenrich Affirmation, ¶3). As claimant undisputedly served a notice of intention to file a claim on February 5, 2009, less than ninety days after the conceded accrual date of November 25, 2008, defense counsel contends that the motion for late claim relief is unnecessary and should be denied. The Court, however, does not agree that claimant’s motion should be denied on the ground that the notice of intention was timely served.

The Court is not bound by defendant’s concession that the claim accrued on November 25, 2008, the date of Supreme Court’s order recognizing the invalidity of defendant’s imposition of post-release supervision. Rather, a claim for wrongful confinement accrues upon the termination of the alleged wrongful confinement (see Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 [2005]; Collins v McMillan, 102 AD2d 860, 861 [2d Dept 1984]; Ramirez v State of New York, 171 Misc 2d 677, 680 [Ct Cl 1997]). The proposed claim seeks compensation for two periods of alleged wrongful confinement, each of which was imposed following determinations that claimant had violated the terms of his PRS. However, although the proposed claim states the specific dates on which the periods of incarceration began, claimant’s papers do not state the dates on which claimant was released from incarceration.[1] Thus, claimant’s motion does not comply with Court of Claims Act § 10(6) which, by reference to Court of Claims Act § 11, requires the proposed claim to “state the time when ... [the] claim arose” (Court of Claims Act § 11[b]). Accordingly, the motion will be denied because it fails to comply with Court of Claims Act § 10(6).

Moreover, even if the Court were inclined to speculate when the claims arose and to find that the notice of intention was not timely served with respect to one or both of them, the motion for late claim relief would not be granted because claimant’s submission does not provide the Court with an adequate basis upon which to decide the motion. Court of Claims Act § 10(6) requires the Court to consider the following six factors: “whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.” The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV, Inc. v New York State Employees Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979, 981 [1982]), and the weight accorded the various factors is a matter within the discretion of the Court.

In his papers, claimant addresses only two of the six factors the Court is required to consider, contending that defendant had notice of the facts underlying the claim and that the late filing will not substantially prejudice defendant. The most notable omission is the absence of discussion of whether the proposed claim has the appearance of merit. This is perhaps the most significant factor for the Court to consider because Court of Claims Act § 10(6) reflects a legislative determination that the Court of Claims should permit a potential litigant to have his or her day in court (see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]), yet a potential litigant should not be subjected to the futility of pursuing a meritless claim (see Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]).

In sum, the motion must be denied because the papers supporting it do not satisfy the requirements of Court of Claims Act §10(6), which leaves the Court unable to determine whether the motion is necessary, as well as whether it is substantively meritorious. Accordingly, it is

ORDERED, that Motion No. M-76461 is DENIED.

June 25, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Notice of Motion, dated March 25, 2009;

(2) Affidavit of Joseph Raffone, sworn to March 25, 2009, with Exhibits 1-6;

(3) Affirmation in Opposition of Michael T. Krenrich, AAG, dated April 13, 2009.

[1]. While one could infer from claimant’s papers that he was released from his first period of confinement on or around July 23, 2007 (one year from his July 23, 2006 re-incarceration date) and was released from his second period on or after July 29, 2008 (the date that a Justice of the Supreme Court ordered his release), the Court declines to speculate as to when claimant was released from custody.