Defendant's cross-motion to dismiss claim alleging that correction officers intentionally assaulted claimant is granted where claim was not filed within time period set forth in Court of Claims Act 10 (3-b).
|Claimant(s):||DEREK A. HEYLIGER|
|Claimant short name:||HEYLIGER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-91225, CM-91304|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||DEREK A. HEYLIGER
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
By: Douglas R. Kemp, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 8, 2018|
|See also (multicaptioned case)|
Claimant moves to amend his claim. Defendant opposes claimant's motion and cross-moves to dismiss the claim based upon claimant's failure to timely file the claim as required by Court of Claims Act 10 (3-b). Claimant opposes defendant's cross-motion to dismiss the claim. The defendant's potentially dispositive cross-motion to dismiss the claim will be considered first.
The claim alleges that claimant was "intentionally and willfully" assaulted by correction officers at Clinton Correctional Facility on October 28, 2015.
Court of Claims Act 10 (3-b) provides at relevant part:
"A claim to recover damages for . . . personal injuries caused by the intentional tort of an officer or employee of the state while acting as such officer or employee . . . 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, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim."
Court of Claims Act 11 (a) requires that the "claim shall be filed with the clerk of the court . . . within the times hereinbefore provided [in Court of Claims Act 10 (3-b)]."
Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 ).
The claim for assault accrued on October 28, 2015. The claimant served a notice of intention to file a claim on the Attorney General within ninety days of accrual of the claim.
As set forth in Court of Claims Act 10 (3-b), service of the notice of intention to file a claim provided claimant a one-year period, measured from the date of accrual (October 28, 2015), in which to file and serve his claim.
Claimant served his claim on the Attorney General on October 28, 2016, within the one-year period set forth in Court of Claims Act 3-b.
Claimant failed, however, to file his claim with the clerk of the court until December 2, 2016. The Court thus lacks jurisdiction over the claim pursuant to Court of Claims Act 10 (3-b) and 11 (a).
Claimant's request to amend his claim to add negligence-based causes of action (which may be asserted during a two-year period after service of a notice of intention to file a claim pursuant to Court of Claims Act ) is unavailing because the Court's lack of jurisdiction over the claim, as filed and served, may not be cured by amendment (Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983 [3d Dept 1986]; Roberts v State of New York, 4 Misc 3d 768 [Ct Cl 2004]).
The defendant's cross-motion to dismiss the claim is granted and the claim is dismissed. Claimant's motion to amend the claim is denied as moot.
January 8, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Request for Leave to Amend Claim, filed October 12, 2017;
2. Proposed Amended Claim, verified October 4, 2017;
3. Defendant's Notice of Cross-Motion, filed October 27, 2017;
4. Affirmation of Douglas R. Kemp, dated October 27, 2017, and annexed exhibits;
5. Claimant's Notice of Reply to Defendant's Cross Motion to Dismiss, including affirmation of Derek A. Heyliger, dated November 11, 2017, and annexed exhibits.