New York State Court of Claims

New York State Court of Claims
HEMPHILL v. THE STATE OF NEW YORK, # 2010-015-153, Claim No. 117787, Motion No. M-78085


Pro se inmate claim was dismissed as untimely.

Case information

UID: 2010-015-153
Claimant(s): JOHN HEMPHILL
Claimant short name: HEMPHILL
Footnote (claimant name) :
Footnote (defendant name) : The caption is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 117787
Motion number(s): M-78085
Cross-motion number(s):
Claimant's attorney: John Hemphill, Pro Se
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Joan Matalavage, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: June 11, 2010
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Defendant moves for dismissal pursuant to CPLR 3211 (a) (2), (7) and (8) on the ground, inter alia, the claim was untimely served and filed.

Claimant, an inmate proceeding pro se, alleges that on August 3, 2008 he was the victim of an illegal search and seizure after a correction officer at Great Meadow Correctional Facility searched his pockets and confiscated postage stamps as contraband. Claimant was found guilty of smuggling and sentenced on August 6, 2008 to thirty days keeplock and the loss of other privileges. The claim was filed on December 10, 2009 and defense counsel established that both the claim and notice of intention to file the claim were received by the Attorney General on December 16, 2009.

Whether the instant claim is viewed as one alleging a constitutional tort or wrongful confinement it is clearly untimely. The time limitations for filing and service of a claim for both unintentional torts (Court of Claims Act 10 [3]) and intentional torts (Court of Claims Act 10 [3-b]) require that a claim or notice of intention to file a claim be filed within ninety days after the date of accrual.

The law is settled that the time limitations contained in section 10 of the Court of Claims Act are "distinctly concerned with the subject matter jurisdiction of the Court of Claims as the State has waived its sovereign immunity against suit only to the extent that claimants comply with the provisions of the statute" Lyles v State of New York, 3 NY3d 396, 400 [2004]). In the instant matter, defendant established the claimant failed to serve and file a claim, or serve a notice of intention to file a claim, within the period prescribed by the Court of Claims Act. Having preserved the timeliness defense in the answer (defendant's Exhibit B), defendant's motion to dismiss the claim is granted. Accordingly, the claim is dismissed.

June 11, 2010

Saratoga Springs, New York


Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated March 31, 2010;
  2. Affidavit of Joan Matalavage sworn to March 31, 2010 with exhibits;
  3. Reply of John Hemphill dated April 26, 2010 with exhibits;
  4. Reply affidavit of Joan Matalavage sworn to May 4, 2010.