New York State Court of Claims

New York State Court of Claims

WHITE v. THE STATE OF NEW YORK, #2009-041-503, Claim No. 111223


Claim served more than ninety days after accrual is dismissed.

Case Information

1 1.The caption is amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption is amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
New York State Attorney GeneralBy: Michael C. Rizzo, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 20, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant Willis L. White (claimant) filed a claim with the Court of Claims on August 3, 2005 concerning a disciplinary determination of the defendant that resulted in claimant spending five days in keeplock. The disciplinary charges sustained against claimant were the result of an allegation that claimant had forged the signature of a doctor to secure medical treatment. Claimant contested the charge at the disciplinary hearing and at the trial of the claim.

The disciplinary hearing which sustained defendant’s allegation was conducted on April 24, 2005. Claimant, having been placed in keeplock at Clinton Correctional Facility (Clinton) on April 19, 2005, awaiting the disciplinary hearing, was found guilty and received a penalty of five days in keeplock (receiving, essentially, the penalty of “time served”). Claimant was released from keeplock that same day, April 24, 2005.

Trial of the claim was conducted on December 5, 2008 at Clinton, testimony taken and exhibits received. At the conclusion of the claimant’s case, defendant moved to dismiss the claim, arguing that the disciplinary hearing determination, being a discretionary act, was entitled to absolute immunity and, further, that the Court lacked jurisdiction under § 10 (3) of the Court of Claims Act, in that while the claim accrued on April 24, 2005, it was not served upon the Attorney General until August 1, 2005, more than ninety days after accrual and was therefore untimely. The Court reserved decision. The Court now grants defendant’s motion. The claim is dismissed.

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]; Roberts v State of New York, 11 AD3d 1000, 1001 [4th Dept 2004]; Pristell v State of New York, 40 AD3d 1198 [3d Dept 2007]).

“A claim for wrongful excessive confinement in a prison setting, which is a species of the tort of false imprisonment, accrues on the date of release from confinement” (Broughton v State of New York, 37 NY2d 451, cert denied sub nom. Schanbarger v Kellogg, 423 US 929; Collins v McMillan, 102 AD2d 860).

The claim was required to be served and filed within ninety (90) days of its accrual on April 24, 2005 (the date claimant was released from keeplock) unless a notice of intention was served on the Attorney General, either personally or by certified mail, return receipt requested. It was not.

Although included in exhibits received (Exhibit 3) is an Affidavit of Service which purports that claimant served the Court, and the Attorney General, with his Notice of Intention and his Claim on July 25, 2005, defendant’s Exhibit B conclusively contradicts that representation. Exhibit B, admitted without objection, contains, among other things, the original Claim (which is date stamped received by the Office of the Attorney General, August 3, 2005) and Notice of Intention, and another Affidavit of Service with different dates than that of Exhibit 3. Moreover, and most importantly, it contains the original, large mailing envelope by which the materials were sent by claimant to the Attorney General’s Office. The envelope bears claimant’s name and return address, has postage dated August 1, 2005 affixed to it, and is date stamped received by the Attorney General’s Office on August 3, 2005. Consistent with those dates, a copy of the claim was date stamped and filed by the Clerk of the Court of Claims on August 3, 2005, and assigned Claim No. 111223.

As such, the Notice of Claim and Claim were served upon the Attorney General on August 1, 2005, more than 90 days beyond the claimant’s accrual date of April 24, 2005. The claim must be and therefore is dismissed as failing to comply with § 10 (3) of the Court of Claims Act.

All motions not previously decided are hereby denied.

Let judgment be entered accordingly.

January 20, 2009
Albany, New York

Judge of the Court of Claims