PRS claim was dismissed as untimely.
|Claimant short name:||RODRIGUEZ|
|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:||Herbert Moreira-Brown, Esquire|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 12, 2010|
|See also (multicaptioned case)|
Defendant moves for dismissal of the instant claim pursuant to CPLR 3211 (a) (2) and (8) on the ground the claim was untimely served.
According to the allegations in the claim, "[t]he New York State Department of Parole failed [to] properly process the Post Release Supervision file of Mr. Jose Rodriguez causing Mr. Rodriguez to serve an additional 7 and 1/2 months on Post Release Supervision. Mr. Rodriguez was denied the opportunity to travel freely for 7 and 1/2 months after his Post Release Supervision should have ended and he was forced to stay in the State of Florida, where his post release supervision had been transferred" (defendant's Exhibit A, Claim, ¶ 2). Claimant alleges that the "Claim accrued on the 12th Day of October, 2009, at 3;00 [sic] PM when Mr. Rodriguez received official notice of the termination of his Post Release Supervision from the Florida Department of Corrections" (defendant's Exhibit A, Claim ¶ 4).
In support of its dismissal motion defendant contends that the claim received by the Attorney General on February 18, 2010 was untimely, citing Court of Claims Act § 10 (3). Court of Claims Act § 10 (3) requires that a claim "for injuries to property or for personal injuries caused by the negligence or unintentional tort . . . 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 . . ." As defendant correctly contends, if the claim accrued on October 12, 2009 as alleged, service of the claim on February 18, 2010 is untimely. While claimant's counsel does not dispute the date the claim was served, he argues in opposition to the motion that Court of Claims Act § 10 (3) is not controlling because the instant claim is neither a claim for personal injuries nor property damage. Rather, claimant's counsel contends that this "is a claim for unlawful extension of claimants [sic] supervision and a violation of his constitutional rights" (Claimant's counsel's Affirmation in Opposition, ¶ 3).
Whether the instant claim is viewed as one alleging a constitutional tort or wrongful confinement, service was 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 be filed and served or a notice of intention to file a claim be served within 90 days after the date of accrual. This was not done. The law is
settled that the time limitations in 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, supra at 400). Defendant established that neither a notice of intention nor a claim were served within the ninety day period prescribed in the Court of Claims Act. Having preserved the timeliness defense in its answer (Court of Claims Act § 11 [c] [i]; defendant's Exhibit B), defendant's motion is granted and the claim is dismissed.
To the extent claimant's counsel requests late claim relief in his affirmation submitted in opposition to the motion, it is denied. A request for late claim relief must be made by motion (Court of Claims Act § 10 ; CPLR 2215). Additionally, claimant's counsel failed to address, in any meaningful way, the statutory factors to be considered prior to granting any such relief.
Accordingly, defendant's motion to dismiss the claim is granted and the claim is dismissed.
November 12, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: