New York State Court of Claims

New York State Court of Claims

GRAHAM v. THE STATE OF NEW YORK, #2009-044-522, Claim No. 111017, Motion Nos. M-75928, M-76051, CM-76004


Synopsis


Inmate claimant’s causes of action for federal and state constitutional violations dismissed; Court denied defendant’s motion to dismiss claim as untimely under the Court of Claims Act, as that defense was waived by not being raised in the answer despite reference to expiration of statute of limitations. Defendant’s motion for leave to assert defense of statute of limitations denied as moot, as defendant had properly raised and preserved that defense.

Case Information

UID:
2009-044-522
Claimant(s):
KAREEM GRAHAM
Claimant short name:
GRAHAM
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111017
Motion number(s):
M-75928, M-76051
Cross-motion number(s):
CM-76004
Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
DAVID H. SWYER, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 27, 2009
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant filed this claim to recover for personal injuries allegedly received while he was in the custody of the Department of Correctional Services. Claimant alleges that during his confinement at Southport Correctional Facility, he was assaulted by a correction officer. Defendant State of New York (defendant) answered and asserted several affirmative defenses. Defendant now moves to dismiss the claim as untimely filed and served (Motion No. M-75928). Claimant opposes the motion, and in the alternative, cross-moves to treat the notice of intention to file a claim as a claim (Cross Motion No. CM-76004). Defendant opposes the cross motion and moves for leave to amend its answer (Motion No. M-76051). Claimant opposes the motion to amend.
MOTION NO. M-75928, CROSS MOTION NO. CM-76004
Defendant argues that the claim, which alleges intentional conduct, is untimely because even though a notice of intention was timely served, the claim was not filed and served within one year of its accrual pursuant to Court of Claims Act § 10 (3-b). Defendant also asserts that the Court has no jurisdiction over claimant’s causes of action asserted pursuant to 42 USC

§ 1983. Further, defendant contends that because claimant has a cause of action for assault, the causes of action which allege a violation of the State Constitution are not available.

Conversely, claimant contends that by failing to raise with particularity the affirmative defense that the filing and service of the claim was untimely under Court of Claims Act § 11 (c), defendant has waived it.

In an action to recover damages for personal injuries caused by the intentional tort of an officer or employee of the State, the claim must be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the claim, unless a notice of intention to file a claim is served upon the Attorney General within 90 days after the accrual of such claim (Court of Claims Act § 10 [3-b]). If a notice of intention is timely served, a claim must thereafter be filed and served within one year after its accrual (id.).

This claim accrued on June 17, 2003, when claimant was allegedly assaulted by a correction officer. It is undisputed that claimant’s pro se notice of intention served on August 1, 2003 was timely.[1] Accordingly, claimant had until June 17, 2004 in which to file and serve a claim. This claim both filed and served on June 16, 2005, thus appears to be untimely.

However, as claimant correctly notes, Court of Claims Act § 11 (c) provides that “[a]ny objection or defense based upon failure to comply with . . . the time limitations contained in [Court of Claims Act § 10] . . . is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.” In order to be sufficiently particular, the defendant must, at a minimum, indicate that the notice of intention was not timely served or that the claim was not timely filed or served in accordance with the Court of Claims Act (see e.g. Rodriguez v State of New York, Ct Cl, June 26, 2007, Collins, J., Claim No. 113166, Motion No. M-73019, Cross Motion No. CM-73119 [UID # 2007-015-203]; see also Firth v State of New York, 184 Misc 2d 105, 109 [2000], affd 287 AD2d 771 [2001], affd 98 NY2d 365 [2002]; Sinacore v State of New York, 176 Misc 2d 1, 9 [1998]).

In addition to the limitations period of Section 10 of the Court of Claims Act, claimants are also subject to the statute of limitations set forth in CPLR article 2 (see Trayer v State of New York, 90 AD2d 263 [1982]; Lawyer v State of New York, Ct Cl, Sept. 6, 2005, Schweitzer, J., Claim No. 109555, Motion No. M-70377 [UID # 2005-036-101]). Defendant’s first affirmative

defense is that “this claim is barred by the expiration of the statute of limitations period” (Verified Answer, ¶ 5). It is apparent that this affirmative defense is referring to the one-year statute of limitations applicable to a cause of action for assault (see CPLR 215 [3]). Because the first affirmative defense does not place claimant on notice that the claim may not have been timely filed or served, defendant has waived any defense that claimant failed to comply with Court of Claims Act § 10 (3-b) (see Court of Claims Act 11 [c]). Accordingly, that portion of defendant’s motion to dismiss the claim as untimely is denied.

However, defendant also seeks dismissal of the causes of action alleging violations of the Federal and State Constitutions. As defendant correctly contends, the Court of Claims does not have jurisdiction to consider Federal Constitutional claims, including civil rights violations brought under 42 USC § 1983, and those causes of action are hereby dismissed (see e.g. Brown v State of New York, 89 NY2d 172, 184 [1996]). Further, because claimant has an adequate remedy available for defendant’s allegedly wrongful conduct, i.e. a cause of action for assault, this Court need not recognize a tort cause of action under the State Constitution (see Martinez v City of Schenectady, 97 NY2d 78 [2001]; Brown v State of New York, supra). Accordingly, this cause of action is also dismissed.

Defendant’s Motion No. M-75928 is granted to the extent that claimant’s causes of action for violations of both the Federal Constitution and the State Constitution are dismissed. However, the cause of action for assault remains pending, and thus there is no basis to treat

claimant’s notice of intention as a claim. Accordingly, claimant’s Cross Motion No. CM-76004 is denied as moot.[2]
MOTION NO. M-76051
Defendant also moves for leave to amend the answer to assert a defense based upon the statute of limitations as set forth in CPLR article 2. Defendant argues that even if it has waived the untimeliness defense under the Court of Claims Act, the statute of limitations applicable to this claim has expired, and the answer should be amended to include such a defense.

In opposition, claimant reiterates his position that defendant has waived the statute of limitations defense as it was not raised with particularity.

Claimant’s contention is without merit. The Court of Appeals has held that the simple statement “statute of limitations,” without any statutory reference, is sufficient to raise and preserve that defense (Immediate v St. John’s Queens Hosp., 48 NY2d 671, 673 [1979]; see also DeSanctis v Laudeman, 169 AD2d 1026 [1991]). As the Court stated previously in this Decision and Order (supra at 3), the first affirmative defense asserts that the statute of limitations has expired. Defendant has therefore already properly raised and preserved this defense in its verified answer. Accordingly, defendant’s motion for leave to amend the answer to include a statute of limitations defense is denied as moot.[3]

In conclusion, defendant’s Motion No. M-75928 is granted to the extent that claimant’s causes of action for violations of both the Federal Constitution (pursuant to 42 USC § 42) and the State Constitution are dismissed. Motion No. M-76051 and Cross Motion No. CM-76004 are both denied as moot.

March 27, 2009
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on defendant’s motions and claimant’s cross motion:

1) Notice of Motion filed on December 3, 2008; Affirmation of James E. Shoemaker, Assistant Attorney General (AAG), dated December 1, 2008, and attached Exhibits A through C.

2) Notice of Cross Motion dated December 16, 2008; Affirmation of David H. Swyer, Esq., dated December 16, 2008, and attached exhibit.

3) Notice of Motion filed on December 29, 2008; Affirmation of James E. Shoemaker, AAG, dated December 24, 2008, and attached Exhibits A through F.


4) Reply Affirmation of David H. Swyer, Esq., dated January 13, 2009.


Filed papers: Claim filed on June 16, 2005; Verified Answer filed on July 25, 2005.


[1]. Claimant thereafter retained counsel who filed and served the claim.
[2]. In any event, claimant’s cross motion would be denied. As defendant correctly notes, a motion to treat a notice of intention as a claim must be made “before an action asserting a like claim against a citizen of the state would be barred under the provisions of [CPLR article 2]” (Court of Claims Act § 10 [8] [a]; see Livingston v State of New York, Ct Cl, Oct. 31, 2007, DeBow, J., Claim No. None, Motion No. M-73835 [UID # 2007-038-569]; Brooks v State of New York, Ct Cl, June 22, 2001, Read, P.J., Claim No. None, Motion No. M-63297 [UID # 2001-001-031]). The statute of limitations for a cause of action alleging assault is one year from the date of accrual (CPLR 215 [3]), which in this case expired on June 17, 2004. This motion made on December 16, 2008 is clearly untimely. Claimant’s argument that the notice of intention also supports a negligence cause of action is similarly without merit. Even if the Court were to apply the three-year statute of limitations applicable to a claim of negligence, the cross motion would still be untimely.
[3]. The Court notes that although it appears that this affirmative defense may ultimately resolve the claim, defendant has not yet moved for dismissal on this basis. Accordingly, claimant should be afforded an opportunity to present facts which may question the completeness of this defense (see generally DeSanctis v Laudeman, supra).