New York State Court of Claims

New York State Court of Claims

GAINES v. THE STATE OF NEW YORK, #2009-041-020, Claim No. 116489, Motion No. M-76438


Synopsis

Defendant’s motion to dismiss is granted where claim was filed and served more than ninety days after accrual of causes of action.

Case Information

UID:
2009-041-020
Claimant(s):
GERALD GAINES, Din. #03-A-1848
Claimant short name:
GAINES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116489
Motion number(s):
M-76438
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
NONE
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Belinda A. Wagner, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 20, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendant moves to dismiss the claim, asserting that claimant failed to serve the claim in a timely manner upon the Attorney General and failed to exhaust his administrative remedy. Claimant has not submitted any opposition to the motion. The claim alleges several causes of action: Claimant was wrongfully confined for ninety days beginning June 13, 2008; claimant was wrongfully denied the opportunity to practice his religion and was assaulted on August 15, 2008; claimant was prevented from praising and worshiping Allah during Ramadan (September 2008); and defendant lost personal property belonging to claimant.

Pursuant to Court of Claims Act § 10 (3):
“A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, 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.”
Courts have consistently held that “[a]s a condition of the State’s limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim” (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]).

A claim for wrongful confinement accrues on “the date on which [claimant’s] confinement terminated” (Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 [2005]). The wrongful confinement claim thus accrued ninety days after the confinement began on June 13, 2008, or on or about September 11, 2008. The claim was filed with the Clerk of the Court of Claims on March 2, 2009 and served on the Attorney General on March 6, 2009, each more than ninety days after the accrual of the wrongful confinement cause of action. The wrongful confinement cause of action is dismissed.

The alleged wrongful denial of claimant’s opportunity to practice his religion and the alleged assault both accrued on August 15, 2008. These causes of action were also filed and served more than ninety days after accrual and also must be dismissed.

The claim does not state an accrual date for the cause of action alleging that claimant was prevented from praising and worshiping Allah during Ramadan, although an exhibit attached to the claim indicates that claimant filed a grievance with respect to this cause of action on September 18, 2008. Accepting the grievance date as the accrual date, the cause of action was filed and served more than ninety days after accrual, requiring dismissal.

With respect to claimant’s lost personal property cause of action, Court of Claims Act § 10 (9) provides as follows:
“A claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.”
An inmate seeking damages for lost property must exhaust the administrative remedy established by Department of Correctional Services, which constitutes a non-waivable jurisdictional filing requirement (Williams v State of New York, 38 AD3d 646, 647 [2d Dept 2007]).

The lost property claim was administratively denied by defendant on November 26, 2008 and claimant was advised of his right to administratively appeal the initial denial. There is no allegation nor proof submitted with the claim showing that claimant appealed the initial denial of his lost property claim. The Court finds that claimant failed to exhaust his administrative remedy prior to filing and serving the claim and the cause of action to recover for lost personal property is dismissed.

Finally, the record shows that the claim was served upon the Attorney General by regular mail. Court of Claims Act § 11 (a) (i), provides, at relevant part:
“[A] copy [of the claim] shall be served upon the attorney general within the times hereinbefore provided for filing with the clerk of the court either personally or by certified mail, return receipt requested.”
Service of a claim by regular mail upon the Attorney General is insufficient to obtain personal jurisdiction over the defendant (Fulton v State of New York, 35 AD3d 977, 978 [3d Dept 2006], lv denied 8 NY3d 809 [2007]; see Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 [2003]; Thompson v State of New York, 286 AD2d 831 [3d Dept 2001]; Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001], rearg denied 96 NY2d 855 [2001]).

In view of the claimant’s failure to timely and properly file and serve the claim, the defendant’s motion to dismiss is granted. The claim is dismissed.


May 20, 2009
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Defendant’s Notice of Motion, filed March 24, 2009;
  2. Affirmation of Belinda A. Wagner, dated March 24, 2009, and annexed exhibit.