New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2009-041-026, Claim No. 114921, Motion No. M-76408


Synopsis


Wrongful confinement claim which was not served within ninety days of claimant’s release from confinement is untimely.

Case Information

UID:
2009-041-026
Claimant(s):
JEROME JOHNSON
Claimant short name:
JOHNSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114921
Motion number(s):
M-76408
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
JEROME JOHNSONPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Thomas M. Trace, Esq., Senior Attorney
Third-party defendant’s attorney:

Signature date:
June 26, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendant moves to dismiss the claim on the grounds that it was not served in accordance with the time requirements of the Court of Claims Act. The claim alleges that claimant was wrongfully confined by defendant as a result of defendant improperly calculating claimant’s sentence of imprisonment. 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. . . .”
Court of Claims Act § 10 (3-b) provides that:
“A claim to recover damages for injuries to property or for personal injuries caused by the intentional 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 . . . .”
Whether the alleged wrongful confinement was intentional or unintentional, the claim was required to be served and filed within ninety (90) days of its accrual. 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]).

Defendant offers proof, and claimant admits, that his confinement ended on December 7, 2007. The cause of action for claimant’s wrongful confinement thus accrued upon his release from confinement on December 7, 2007. According to an affidavit provided by defendant, the only copy of the claim received by the Attorney General was served on February 9, 2009, well beyond the ninety day period.

Claimant apparently had earlier served a copy of the claim by certified mail, return receipt requested, addressed to: “ATTORNEY GENERAL, 271 CADMAN PLAZA EAST, BROOKLYN, NY 11201.” This service took place on March 4, 2008, within the ninety day period, and claimant received a return receipt signed by “M. Saldana.”

The uncontradicted proof shows that the New York State Attorney General does not maintain an office at 271 Cadman Plaza East, Brooklyn, NY 11201 and has no employee at its actual Brooklyn Regional Office (55 Hanson Place, Suite 1080, Brooklyn, NY 11217) named “M. Saldana,” who allegedly accepted service of the claim on March 4, 2008.

Consequently, claimant has not shown that the Attorney General was served in a timely manner. The defendant’s motion to dismiss the claim as untimely is granted.


June 26, 2009
Albany, New York

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


Papers Considered:

  1. Notice of Motion, filed March 18, 2009;
  2. Affirmation of Thomas M. Trace, dated March 16, 2009, and annexed exhibits;
  3. Affidavit of Judy L. Palmer, sworn to March 13, 2009;
  4. Affidavit of Janet A. Barringer, sworn to March 16, 2009, and annexed exhibits;
  5. Affidavit of Jerome Johnson, sworn to April 9, 2009, and annexed exhibits;
  6. Affidavit of Melissa DeJohn, sworn to June 18, 2009, and annexed exhibits.