For the reasons set forth below, Defendant’s pre-answer motion to dismiss
the Claim based upon Claimant’s failure to comply with the service
requirements of Court of Claims Act §§ 10(3) and 11 is granted.
Claimant’s motion for permission to serve and file a claim late pursuant
to Court of Claims Act § 10(6) is denied.
The Claim, which was filed with the Clerk of the Court on September 8, 2008,
alleges that Claimant was sentenced under indictment number 3149/04 and was
incarcerated without imposition of a period of post-release supervision
(“PRS”) by the sentencing court. It is further alleged that the
State wrongfully placed Claimant on PRS and that, on September 15, 2006,
Claimant was incarcerated at Green Haven Correctional Facility in Stormville,
New York for an alleged violation of that wrongfully imposed PRS period.
Claimant asserts that he was illegally incarcerated for a period of nine months
as a result of the State’s unlawful imposition of PRS. While the Claim
does not state when Claimant was released from custody, the Court notes that
nine months from September 15, 2006 would be sometime in mid-June 2007.
Pursuant to Court of Claims Act provisions applicable to personal injury
actions, Claimant was required to file and serve his Claim within 90 days from
the date of accrual unless a written Notice of Intention to File a Claim was
served upon the Attorney General within such time period. In that case, the
Claim itself was required to be filed and served upon the Attorney General
within two years after the accrual of the Claim (to the extent Claimant asserts
injuries caused by negligence or unintentional torts) or within one year (to the
extent he asserts intentional torts of State employees) (Court of Claims Act
§§ 10, 10[3-b]). In either case, Claimant was required to initiate
action within 90 days of the Claim’s accrual.
Section 11(a)(i) of the Court of Claims Act provides that the Claim shall be
filed with the Clerk of the Court and that a copy shall be served upon the
Attorney General within the time period provided in Section 10 of the Court of
Claims Act, either personally or by certified mail, return receipt requested.
It is well established that failure to timely serve the Attorney General in
strict compliance with Court of Claims Act § 11 gives rise to a
jurisdictional defect (see Finnerty v New York State Thruway Auth., 75
NY2d 721, 723 ; Dreger v New York State Thruway Auth., 177 AD2d
762, 763 [3d Dept 1991], affd 81 NY2d 721 ; Suarez v State of
New York, 193 AD2d 1037, 1038 [3d Dept 1993]).
Pursuant to Court of Claims Act § 11(c), however, any such defect is
waived unless it is raised with particularity as an affirmative defense, either
by motion to dismiss prior to service of the responsive pleading or in the
responsive pleading itself (see Knight v State of New York, 177 Misc 2d
181, 183 [Ct Cl 1998]).
Court of Claims Act § 11(a)(i) provides, “[s]ervice by certified
mail, return receipt requested, upon the attorney general shall not be complete
until the claim . . . is received in the office of the attorney general.”
There appears to be some discrepancy both as to when the Claim accrued and when
it was received by the Attorney General.
Claimant asserts he was incarcerated for a period of nine months from September
15, 2006 (Claim, ¶¶ 4 & 5). In his affidavit of merit submitted
in support of his motion to file a late claim and in opposition to the
State’s dismissal motion, Claimant asserts that he “was illegally
incarcerated until June 6, 2007” (Claimant’s Affidavit of Merit,
¶ 4, Ex. A attached to DiJoseph Affirmation in Opposition and Reply
Affirmation). Yet, Mr. DiJoseph states in his affirmation submitted in support
of Claimant’s motion for permission to file a late Claim that Claimant was
incarcerated until June 6, 2008 (DiJoseph Affirmation in Support, ¶¶
3[c], 3[d] and 7). In his Affirmation in Opposition and Reply Affirmation, Mr.
DiJoseph reiterates that Claimant was incarcerated until June 6, 2008
(see ¶ 22).
In addition, Mr. DiJoseph asserts in his Affirmation in Support that the Claim
was served on the State of New York on September 8, 2008, “only 4 days
beyond the ninety (90) day statutory period” (DiJoseph Affirmation in
Support, ¶ 3[a]). However, nearly a month after his Affirmation in Support
of Claimant’s instant motion, and in response to this Court’s Order
to Show Cause, Mr. DiJoseph affirmed that the Claim was mailed to the Attorney
General by certified mail, return receipt requested, on September 18, 2008
(see McBride v State of New York, Ct Cl, Claim No. 115790, Motion
No. M-76020, April 16, 2009, McCarthy, J. [UID No. 2009-040-029]). Defense
counsel, in his Affirmation submitted in support of the State’s motion to
dismiss, asserts that the Attorney General’s office received an unverified
Claim on December 15, 2008 (see Ex. A attached to Defendant’s
Despite the discrepancy as to when the Claim accrued and when it was served
upon Defendant, it is clear that the parties agree that the Claim was not timely
served upon the Defendant. Even if it was received by Defendant on September 8,
2008, Claimant’s counsel admits it was served four days late.
Court of Claims Act § 10 is more than a statute of limitations; it is a
jurisdictional prerequisite to bringing and maintaining an action in this Court
(DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973],
affd 37 NY2d 735 (1975); Antoine v State of New York, 103 Misc 2d 664
[Ct Cl 1980]). Failure to timely comply with the statutory filing requirements
of the Court of Claims Act constitutes a fatal jurisdictional defect requiring
dismissal (Lichtenstein v State of New York, 93 NY2d 911, 913 ;
Buckles v State of New York, 221 NY 418 ;Ivy v State of New
York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104
AD2d 782 [2d Dept 1984], lv denied 64 NY2d 607 ). This defect was
timely and properly raised with particularity, by this pre-answer motion, in
accordance with Court of Claims Act § 11(c).
Based upon the foregoing, Defendant’s motion is granted and the Claim is
dismissed for failure to timely serve and file the Claim in accordance with
Court of Claims Act §§ 10(3) and 10(3-b).
The Court now turns to Claimant’s motion pursuant to Court of Claims Act
§ 10(6) seeking permission to serve and file a late claim.
Pursuant to Court of Claims Act § 10(6), it is within the Court’s
discretion to allow the filing of a late claim if the applicable statute of
limitations set forth in Article 2 of the CPLR has not expired. Thus, the first
issue for determination upon any late claim motion is whether the application is
timely. The proposed claim appears to assert causes of action for the
intentional tort of false imprisonment (CPLR § 215, a one-year statute
of limitations) and negligence for unlawfully imposing a period of PRS (CPLR
§ 214, a three-year statute of limitations).
A cause of action for false imprisonment accrues when the person is released
from custody (Nunez v City of New York
, 307 AD2d 218, 219 [1st Dept
2003]). Here, based upon the information provided, the Court cannot determine
if the statute of limitations has expired for the false imprisonment cause of
action. Claimant asserts in his affidavit of
that he was released from custody (and
the Claim accrued) on June 6, 2007. Claimant’s counsel, Mr. DiJoseph,
asserts in both his affirmations that Claimant was released from custody on June
6, 2008. If Claimant is correct, the motion is untimely; if Mr. DiJoseph is
correct, the motion is timely. Claimant has not provided any documentary proof
as to when he was released from custody. As the Court cannot determine whether
the underlying statute of limitations has expired as to the false imprisonment
cause of action, that portion of the motion is denied.
The proposed Claim also asserts that the Defendant was negligent in that the
Department of Correctional Services unlawfully imposed a period of PRS
“not ordered by the Judge” (proposed Claim, ¶ 6). “To
the extent claimant alleges a negligence cause of action, it must be dismissed
as a claim for negligence may not supplant the traditional tort remedies of
false imprisonment” (Nazario v State of New York, ___ Misc 3d ___,
2009 NY Slip Op 29130 [Ct Cl 2009]; see Santoro v Town of Smithtown, 40
AD3d 736, 738 [2d Dept 2007]; Simon v State of New York, 12 AD3d 171 [1st
Dept 2004]; Boose v City of Rochester, 71 AD2d 59, 62 [4th Dept 1979]).
Moreover, Claimant fails to assert the date the PRS was allegedly unlawfully
imposed, so the Court would be unable to determine if the three-year statute of
limitations had expired even if the negligence branch of the proposed claim were
viable. Thus, that portion of the motion also is denied.
Based upon the foregoing, the State’s motion to dismiss is granted and
Claimant’s motion for permission to serve and file a claim late pursuant
to Court of Claims Act §10 (6) is denied.