Defendant's motion to dismiss untimely claim for wrongful confinement granted. Defendant demonstrated prima facie that the Attorney General was not served with a notice of intention, which claimant did not successfully rebut. Thus, claimant's time within which to serve the claim was not extended, and its service beyond 90 days of accrual was untimely.
|Claimant short name:||SIMPSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK; (DEPARTMENT OF CORRECTIONAL, COMMUNITY AND SUPERVISION SERVICES)|
|Footnote (defendant name) :|
|Motion number(s):||M-91154, M-91596|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||THEODORE SIMPSON, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 24, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim alleging that he was wrongfully confined from June 7 to July 14, 2015 in keeplock at Green Haven Correctional Facility (CF). Defendant moves in lieu of answer to dismiss the claim on jurisdictional grounds and for failure to state a cause of action (M-91154). Claimant has filed a motion seeking summary judgment (M-91596).(1)
Defendant argues that the claim must be dismissed for lack of jurisdiction on timeliness grounds. Court of Claims Act §§ 10 (3-b) and 11 (a) (i) require, in relevant part, that a notice of intention to file a claim or the claim itself be served upon the Attorney General within 90 days after accrual of the claim. A timely served notice of intention will extend the time within which to serve and file the claim to one year for claims asserting intentional torts (see Court of Claims Act § 10 [3-b]). It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional in nature, and that the failure to timely serve the claim upon the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 ; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 ; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]).
The claim alleges a series of events on the following timeline:
- June 7, 2015 - claimant was confined to keeplock at Green Haven CF following the issuance of an inmate misbehavior report (IMR) charging him with having violated five rules of inmate conduct. After a finding of guilt following a Tier III hearing, a penalty of 38 days in keeplock retroactive to June 7, 2015 was imposed.
- July 14, 2015 - Claimant was released from keeplock confinement.
- December 14, 2015 - Claimant's administrative appeal of the disciplinary determination was denied.
- January 21, 2016 - Claimant commenced a CPLR Article 78 proceeding seeking review in Albany County Supreme Court.
- On or about August 11, 2016 - Claimant "filed" a Notice of Intention to File a Claim (see Claim number 130193, ¶ 6).
- On or about July 31, 2017 - Claimant received the decision of the Appellate Division, Third Department that annulled the disciplinary determination and directed that all references to the determination be expunged from his records.
- August 30, 2017 - A claim is filed and assigned claim number 130193.
- September 11, 2017 - The claim is served upon the Attorney General (see Rubinstein Affirmation, ¶ 5; Exhibit 2).
Defendant argues that it was never served with the notice of intention that was allegedly "filed" on or about August 11, 2016. Defendant submits the affidavit of Francine Broughton, a paralegal in the Poughkeepsie Regional Office of the Office of the Attorney General (OAG), who avers that she conducted a search of the OAG's internal database and its physical files, and found no indication that the OAG ever received from claimant a notice of intention alleging unlawful confinement in keeplock (see Rubinstein Affirmation, Exhibit 1 [Broughton Affidavit, ¶¶ 3-4]). Defendant further asserts that even assuming that the Notice of Intention was served on defendant on August 11, 2016, it was not timely served within 90 days of its accrual date and thus, it would not have extended the time to file and serve the claim, which was not served upon the OAG until September 11, 2017 (see id., Exhibit 2).
A cause of action for money damages in the Court of Claims generally accrues when the claimant's damages are reasonably ascertainable (see Augat v State of New York, 244 AD2d 835, 836 [3d Dept 1997], lv denied 91 NY2d 814 ). This claim sounds in the intentional tort of wrongful confinement,(2) and contrary to claimant's argument that the claim did not accrue until the Appellate Division's reversal of the disciplinary charges, all of the elements of a cause of action for unlawful confinement as well as the "[d]amages arising from wrongful confinement . . . are reasonably ascertainable upon a claimant's release from confinement and, therefore, it is on that date that the claimant's cause of action accrues" (Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011]; see Vasquez v State of New York, 23 Misc 3d 1101[A], 2009 NY Slip Op 50527 [U] at *2 [Ct Cl 2009]; Jones v State of New York, UID No. 2010-041-020 [Ct Cl, Milano J., May 10, 2010]; see also Esposito v State of New York, 35 Misc 3d 1216[A], 2011 NY Slip Op 52509 [U] at *4 [Ct Cl 2011]). Administrative and judicial appeals do not extend the accrual date of a cause of action for wrongful confinement, as there is no reason why - if claimant believes that he was wrongfully confined - his pursuit of appellate review and a claim for money damages in the Court of Claims could not be prosecuted simultaneously. Thus, this claim accrued when claimant was released from keeplock confinement on July 14, 2015.
Claimant opposes defendant's assertion that it was not served with the notice of intention, maintaining that the Attorney General was served with the Notice of Intention, and he relies upon the following documents in support of his position. He submits a Department of Corrections and Community Supervision (DOCCS) disbursement receipt that shows that on August 11, 2015, claimant requested funds to send a "notice of intent for: wrongful confinement" to the Attorney General by certified mail number "7010-0290-000-1595 3923" (Simpson Correspondence, dated Oct. 2, 2017 [DOCCS Disbursement or Refund Request, dated Aug. 11, 2015]). Second, he submits a United States Postal Service (USPS) certified mail receipt postmarked August 17, 2015 bearing tracking number "7010 0290 000 1595 3923" and addressed to the Attorney General (id. [Certified Mail Receipt, postmarked Aug. 17, 2015]). Third, an affidavit of service that was sworn to on August 11, 2015 that avers that claimant served the Attorney General with a Notice of Intention to File a Claim by placing it in a USPS mailbox at Green Haven CF, but does not recite the date on which he did so (see id. [Affidavit of Service, sworn to Aug. 11, 2015]). Fourth, an undated Notice of Intention to File a Claim alleging that claimant was issued an IMR charging him with five rules violations and that he was illegally confined in keeplock for 38 days, ending on July 14, 2015 (see id. [Notice of Intention]).
Accordingly, as noted above, claimant was required to serve a notice of intention to file this claim, or to serve and file the claim itself, within 90 days of July 14, 2015 (see Court of Claims Act § 10 [3-b]), or not later than October 12, 2015. Defendant has established prima facie that a notice of intention was never received by the OAG (see Rubinstein Affirmation, Exhibit 1 [Broughton Affidavit]), as is required to complete service. Claimant's documents appear to demonstrate that on August 17, 2015 claimant mailed a notice of intention that alleged that he was wrongfully confined to the Attorney General by certified mail, but the Court of Claims Act requires that service of a claim or a notice of intention by mail shall be accomplished by certified mail, return receipt requested (CMRRR) and that "[s]ervice by [CMRRR], upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general" (Court of Claims Act § 11 [a] [i] [emphasis added]). "Although a proper affidavit of service raises a presumption of proper service" (Lee v State of New York, UID No. 2015-018-624 [Ct Cl, Fitzpatrick, J., June 4, 2015), claimant's affidavit of service does not aver when service was made or whether it was made by CMRRR, and thus it does not create a presumption of proper service because it does not demonstrate that service was made in "an authorized manner" (CPLR 306 [a]). Nor has claimant submitted a CMRRR green card receipt or any other proof that the claim was received by the Attorney General and thus, he has not rebutted defendant's prima facie demonstration of lack of service of the claim upon the Attorney General. Accordingly, because defendant has demonstrated without sufficient refute that no notice of intention was served, claimant's time to serve the claim was not extended beyond 90 days after its accrual on July 14, 2015. Inasmuch as the claim was not served until September 11, 2017, it is clearly untimely and defendant's motion to dismiss the claim as jurisdictionally defective must be granted.
In light of the dismissal of the claim on jurisdictional grounds, claimant's motion is moot and need not be addressed.
Accordingly, it is
ORDERED, that defendant motion number M-91154 is GRANTED and claim number 130193 is hereby DISMISSED; and it is further
ORDERED, that claimant's motion number M-91596 is DENIED.
April 24, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 130193, filed August 30, 2017;
(2) Correspondence of Eileen F. Fazzone, Chief Clerk of the Court of Claims, dated
September 19, 2017;
(3) Notice of Motion to Dismiss (M-91154), dated September 25, 2017;
(4) Affirmation of Heather Rubinstein, AAG, in Support of Motion to Dismiss, dated
September 25, 2017, with Exhibits 1 [Broughton Affidavit, sworn to
September 26, 2017, with Exhibits A-C] and 2;
(5) Correspondence of Eileen F. Fazzone, Chief Clerk of the Court of Claims, dated
October 5, 2017;
(6) Correspondence of Theodore Simpson, dated October 2, 2017, with Attachments
(DOCCS Disbursement or Refund Request, Certified Mail Receipt, Affidavit of Service
and Notice of Intention);
(7) Note of Issue, filed December 4, 2017;
(8) Notice of Motion for Summary Judgment (M-91596), filed December 29, 2017;
(9) Affidavit of Theodore Simpson in Support of Motion for Summary Judgment, sworn to
December 26, 2017;
(10) Correspondence of Heather R. Rubinstein, AAG, dated January 30, 2018, with exhibit
(Motion No. M-91154 Motion Papers);
(11) Correspondence of Nancy Schulman, Principal Law Clerk, dated February 8, 2018;
(12) Correspondence of Theodore Simpson, dated February 16, 2018.
1. The Court's consideration of the parties' motion was preceded by some confusion as to whether defendant's motion to dismiss was addressed to a claim other than the instant claim. Ultimately, the confusion was resolved, and the previously assigned return dates for both motions were adjourned, and both were made returnable on February 21, 2018 (see Correspondence of Principal Law Clerk Nancy Schulman, Feb. 8, 2018).
2. Claims alleging wrongful confinement in the context of incarceration in a correctional facility generally sound in intentional tort (see Gittens v State of New York, 132 Misc2d 399, 407 [Ct Cl 1986]) because the factual allegations in such claims usually state the elements of a cause of action for false imprisonment (see Martinez v City of Schenectady, 97 NY2d 78, 85  [defendant intended to confine plaintiff, who was conscious of the confinement and did not consent to it, and the confinement was not otherwise privileged]). In limited factual circumstances, such a claim may also sound in negligence (see Ramirez v State of New York, 171 Misc2d 677, 682 [Ct Cl 1997]), where, for example, the claim alleges conduct that was "almost certainly unintentional," such as computation errors, or an erroneous misapplication of rules governing release (see id., at 683). Claimant's attempt to cast this claim in negligence is misplaced, as it clearly alleges that claimant was intentionally confined following the issuance of an IMR and thus, it does not fall within that small class of claims that sound in negligence.