Defendant's motion to dismiss claim for untimely service granted. Claim for wrongful confinement following a reversal of disciplinary charges accrued upon claimant's release from the confinement, not the date upon which he learned of the reversal.
|Claimant(s):||CARLOS PEREZ, #07-A-1342|
|Claimant short name:||PEREZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||CARLOS PEREZ, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 27, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility filed this claim in which he seeks monetary compensation for alleged wrongful confinement in keeplock status for 30 days, from January 11, 2017 to February 10, 2017. The claim alleges that claimant was keeplocked as a disciplinary sanction following a disciplinary hearing that was ultimately administratively reversed and expunged from his institutional record. Defendant moves in lieu of answer to dismiss the claim because it is untimely, and because it fails to state a cause of action. Claimant has not opposed the motion.(1)
The Court of Claims Act requires that a claim for wrongful confinement be served upon the Attorney General and filed with the Court within 90 days after the accrual of the claim, unless a notice of intention to file the claim was timely served (see Court of Claims Act §§ 10 ; 10 [3-b]). There is no indication that a notice of intention to file this claim was served upon the Attorney General, and the claim was filed on July 5, 2017 and served on July 10, 2017 (see Smith Affirmation, Exhibit A), well within 90 days of June 6, 2017, the date upon which claimant was notified that the disciplinary determination had been administratively reversed, which the claim sets forth as the date of accrual (see Claim No. 129941, ¶ 3).
As stated above, this claim sounds in wrongful confinement (see id., ¶¶ 7[J]; 34), which accrued on the date of claimant's release from the allegedly wrongful confinement (see Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011]; 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]). Notwithstanding the fact that claimant took an administrative appeal from the disciplinary proceeding determination and that the determination was eventually administratively reversed, the claim accrued when claimant was released from keeplock because at that point in time, "all of the elements necessary to establish a claim [for wrongful confinement] could be truthfully asserted" (Esposito v State of New York, 35 Misc 3d 1216[A], 2011 NY Slip Op 52509 [U] at *4 [Ct Cl 2011]; see Davis v State of New York; Cooper v State of New York, UID No. 2013-038-563 [Ct Cl, DeBow, J. Oct. 7, 2013]). Ninety days after the date of claimant's release from keeplock on February 10, 2017 was May 11, 2017.
This claim was filed and served on July 5, 2017 and July 10, 2017, respectively (see Claim No. 129941; Smith Affirmation, Exhibit A), beyond the 90-day period. It is well established that the failure to comply with the time requirements of the Court of Claims Act is a jurisdictional defect that requires dismissal of the claim (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 ; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]), and this claim must be therefore be dismissed.
In light of the above, defendant's remaining arguments in support of its motion need not be addressed. Accordingly, it is
ORDERED, that defendant's motion number M-90837 is GRANTED, and claim number 129941 is DISMISSED.
April 27, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Verified Claim number 129947, filed July 5, 2017;
(2) Notice of Motion to Dismiss, dated July 25, 2017;
(3) Affirmation of Jeane L. Strickland Smith, dated July 25, 2017, with Exhibit A;
(4) Correspondence of Carlos Perez, dated August 23, 2017;
(5) Correspondence of Nancy Schulman, Principal Law Clerk, dated January 9, 2018.
1. By correspondence dated August 23, 2017, claimant requested that the motion return date be adjourned to allow him time to obtain and submit a document in support of his opposition to the motion. The motion was adjourned, and claimant was notified that the new return date was February 21, 2018 (see Schulman Correspondence, Jan. 9, 2018).