New York State Court of Claims

New York State Court of Claims

McBRIDE v. THE STATE OF NEW YORK, #2009-040-037, Claim No. 115790, Motion Nos. M-76140, M-76190


Synopsis


State’s motion to dismiss Claim as untimely served and filed granted. Cross-motion for permission to file a late Claim denied without prejudice.

Case Information

UID:
2009-040-037
Claimant(s):
DESMIN MCBRIDE
Claimant short name:
McBRIDE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115790
Motion number(s):
M-76140, M-76190
Cross-motion number(s):

Judge:
CHRISTOPHER J. MCCARTHY
Claimant’s attorney:
ARNOLD E. DIJOSEPH, P.C.By: Arnold E. DiJoseph, III, Esq.
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Michael T. Krenrich, Esq., AAG
Third-party defendant’s attorney:

Signature date:
April 27, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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[3], 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 [1989]; Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; 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 Motion).

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 [1999]; Buckles v State of New York, 221 NY 418 [1917];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 [1985]). 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[3], a one-year statute of limitations) and negligence for unlawfully imposing a period of PRS (CPLR § 214[5], 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 merit[1] 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.


April 27, 2009
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered by the Court on Defendant’s motion to dismiss and Claimant’s motion for permission to serve and file a claim late:

Papers Numbered


Notice of Motion, Affirmation in Support
and Exhibits Attached 1


Notice of Motion, Affirmation
and Exhibit Attached 2


Affirmation in Opposition to Claimant’s Motion
and Exhibits Attached 3


Affirmation in Opposition and Reply Affirmation
and Exhibit Attached 4



Filed Papers: Claim


[1].The Court notes that, in his affidavit of merit, Mr. McBride asserts he is a resident of the State of Connecticut and that the affidavit was sworn to before a Notary Public of the State of Connecticut. However, the venue on the affidavit recites Claimant was in the State of New York, County of New York at the time he made the affidavit. Thus, it appears that the oath was sworn to outside the jurisdiction in which the notary was authorized to act. However, such fact does not make the affidavit invalid or in any way defective (Executive Law § 142-a[1], [2][f], [3]; 1 NY Jur 2d Acknowledgments, Affidavits, Oaths, Notaries and Commissioners § 55).