Pro se inmate claim was dismissed as untimely.
|Claimant short name:||HEMPHILL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended sua sponte to reflect the only properly named defendant.|
|Judge:||FRANCIS T. COLLINS|
|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|
|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 ) 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 ). 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
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: