Claimant's motion to file late claim alleging wrongful confinement was denied where he failed to allege dates of wrongful confinement.
|Claimant short name:||GARCIA|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Robert Garcia, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael C. Rizzo, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 2, 2010|
|See also (multicaptioned case)|
Movant, an inmate, seeks permission to file a late claim pursuant to Court of Claims Act § 10 (6).(1)
Movant supports the motion with what appears to be a proposed claim alleging a one-year period of false imprisonment arising from a violation of the conditions of a term of postrelease supervision (PRS) imposed by the New York State Department of Correctional Services rather than the sentencing Court. Movant submits in support of the motion a copy of his Sentence & Commitment dated March 14, 2000, which reflects that he was sentenced as a second felony offender to a 3 ½ -year determinate term of imprisonment. Movant also submits in support of the motion the sentencing minutes, which do not include a statement imposing a PRS term.
The State opposes the motion arguing that it was not served upon the Attorney General. Inasmuch as the affidavit of service that was filed with the motion reflects service upon the Office of the Attorney General on August 19, 2009, the Court will decide the merits of the motion.
While it appears movant seeks late claim relief, he fails to cite the statute pursuant to which the motion is made or address the statutory factors to be considered in determining such a motion (see Court of Claims Act § 10 ).
Moreover, the Court lacks discretion to permit the filing of a late claim where the motion is made beyond the time "an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules" (Court of Claims Act § 10 ; Lerner v State of New York, ___AD3d ___, 2010 WL 1235592 ). Movant alleges he was illegally imprisoned for a period of one year but fails to clearly allege the dates of his confinement. Inasmuch as a cause of action for false imprisonment accrues upon the release from confinement (Charnis v Shohet, 2 AD3d 663 ), the Court is unable to determine the timeliness of the instant motion on the existing motion record.
Accordingly, the motion is denied.
April 2, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: 1. Undated notice of motion;
2. Affidavit of service sworn to August 19, 2009;
3. Document entitled "Claim" dated August 19, 2009;
4. Sentence & Commitment dated March 14, 2000;
5. Sentencing minutes of Robert Garcia dated March 14, 2000;
6. Handwritten document entitled Information From Legal Aid;
7. Affirmation In Opposition of Paul F. Cagino dated February 17, 2010.
1. Simultaneously with the filing of the instant motion, a claim was filed and assigned claim number 117363.