Claim was dismissed as untimely.
|Claimant short name:||RUSSELL|
|Footnote (claimant name) :||The Court has sua sponte amended the caption to protect the identity of the claimant pursuant to Civil Rights Law 50-b (1).|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Christina Calabrese, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 2, 2021|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim pursuant to CPLR 3211 (a) (2) and (8) on the ground it was untimely filed and served.
Following a prison disciplinary hearing on a charge of unauthorized drug use, claimant, a pro se inmate, was found guilty and was confined to the Special Housing Unit of various prison facilities from April 4, 2019 through the date of his release on June 11, 2019. The hearing determination was administratively reversed and the charges were expunged from claimant's institutional record on September 23, 2019. Claimant seeks damages for wrongful confinement and, in addition, alleges that during the course of his disciplinary confinement he was "nearly sexually assaulted" by an inmate with whom he shared a cell (Claim, ¶ 5).
It is undisputed that the claimant served a notice of intention to file a claim by certified mail, return receipt requested, which was received in the Office of the Attorney General on October 18, 2019. The instant claim was filed October 29, 2019 and received in the Office of the Attorney General by certified mail, return receipt requested, on October 30, 2019.
Defendant contends in support of its dismissal motion that the claim is untimely under both Court of Claims Act § 10 (3) and § 10 (3-b) because neither a claim nor a notice of intention to file a claim were filed or served within 90 days of the claims' accrual.
Both Court of Claims Act § 10 (3-b) applicable to intentional torts and § 10 (3) applicable to unintentional torts require that either a claim or notice of intention to file a claim be served within 90 days. The difference between the two sections is that where a notice of intention has been served a claim alleging an intentional tort must be filed and served within one year after accrual of the claim, whereas a claim alleging an unintentional tort must be filed and served within two years after accrual. Giving the claim here a liberal construction, claimant alleges causes of action for both wrongful confinement, an intentional tort, and negligent supervision, an unintentional tort. A claim for wrongful confinement accrues upon a claimant's release from confinement since it is not until that date that the claimant's damages are reasonably ascertainable (Trammell v State of New York, 172 AD3d 1847 [3d Dept 2019]; Campos v State of New York, 139 AD3d 1276 [3d Dept 2016]). Inasmuch as claimant was released from disciplinary confinement on June 11, 2019, both the notice of intention served on October 18, 2019 as well as the claim, filed October 29, 2019 and served October 30, 2019, were untimely with respect to claimant's cause of action for wrongful confinement. With regard to any cause of action for negligent supervision which may be inferred from the facts alleged in the claim, it too is untimely, having been asserted more than 90 days following its alleged accrual date of April 13, 2019.
The timeliness provisions of the Court of Claims Act, though waivable under § 11 (c), constitute jurisdictional pre-requisites to the exercise of this Court's jurisdiction. This is because the State's waiver of immunity under Court of Claims Act § 8 is conditioned upon claimant's compliance with the specific conditions to suit set forth in article II of the Court of Claims Act, including the time limitations set forth in Court of Claims Act § 10 (Lyles v State of New York, 3 NY3d 396, 400 ; Alston v State of New York, 97 NY2d 159 ). As a result, "[f]ailure to comply with the statutory filing and service requirements deprives the Court of Claims of subject matter jurisdiction and compels dismissal of the claim" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see also Jones v State of New York, 171 AD3d 1362 [3d Dept 2019], appeal dismissed 33 NY3d 1056 ; Baysah v State of New York, 134 AD3d 1304 [3d Dept 2015]; Jones v State of New York, 171 AD3d 1362 [3d Dept 2019], appeal dismissed 33 NY3d 1056 ). As the defendant preserved its timeliness defense by asserting it, with sufficient particularity, as affirmative defenses in its answer (defendant's Exhibit B, ¶¶ 18, 19), the claim must be dismissed.Based on the foregoing, the defendant's motion is granted and the claim is dismissed.
February 2, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims