Claim was dismissed as untimely following trial. Inasmuch as defendant's motion for dismissal was made beyond the court-ordered deadline, a sanction was imposed for the dilatory conduct.
|Claimant short name:||SMITH|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Troy Smith, Pro Se|
|Defendant's attorney:||Honorable Eric T. Schneiderman, Attorney General
By: Douglas R. Kemp, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 6, 2017|
|See also (multicaptioned case)|
Claimant testified at the trial of this matter on September 14, 2017 that he was unlawfully confined in the Great Meadow Correctional Facility Special Housing Unit from June 18, 2010 to December 2010.
Claimant testified that he is entitled to $30.00 for each day of his wrongful confinement as a result of the administrative reversal of the determination rendered at his superintendent's hearing which required that references to the hearing be expunged from the claimant's institutional record. Exhibit 1 is a memorandum dated February 27, 2014 from Albert Prack, Director of Special Housing and Inmate Discipline, advising the superintendent of Green Haven Correctional Facility that the results of the claimant's superintendent's hearing had been reversed and ordering that all references to the hearing be expunged from claimant's institutional record. The memorandum states that the administrative determination was reversed pursuant to a decision of the US District Court for the Northern District of New York dated January 8, 2014.
On cross-examination the claimant agreed that he was charged with a disciplinary infraction with regard to events which occurred on June 18, 2010, that a hearing was conducted on July 13, 2010, and that he was released from the special housing unit in December 2010. He further reiterated that his claim is one for wrongful confinement.
The defendant offered Exhibit B, a Notice of Intention to file a claim marked received by the Office of the Attorney General on May 8, 2014. Exhibit B also includes a copy of the envelope in which the Notice of Intention was served, which is also marked as received by the Attorney General on May 8, 2014. Exhibit B was received in evidence. The defendant also offered Exhibit C, a copy of the claim marked as received by the Office of the Attorney General on May 28, 2014. That Exhibit was also received in evidence. The defendant then moved to dismiss the claim on the basis that the notice of intention was served by regular mail and that the claim was untimely.
Court of Claims Act § 10 (3-b) requires that an intentional tort claim, such as one for wrongful confinement, be filed and served within 90 days following the accrual of the claim unless a notice of intention to file a claim is served within that time period "in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim." The State's waiver of immunity under Section 8 of the Court of Claims Act 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, "[a] failure to comply with the time provisions of Court of Claims Act § 10 divests the Court of Claims of subject matter jurisdiction" (Steele v State of New York, 145 AD3d 1363, 1364 [3d Dept 2016]; see also Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; Miranda v State of New York, 113 AD3d 943 [3d Dept 2014]; Encarnacion v State of New York, 112 AD3d 1003 [3d Dept 2013]).
A claim for wrongful confinement accrues upon a claimant's release from confinement because it is on that date damages are reasonably ascertainable (Campos v State of New York, 139 AD3d 1276 [3d Dept 2016]; Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]; Burks v State of New York, 119 AD3d 1302 [3d Dept 2014]). Here, the claim was clearly untimely as claimant was released from punitive confinement in December 2010 and the notice of intention and claim were not served until May 8, 2014 and May 28, 2014, respectively. While the defendant may waive its defense that the claim is untimely by failing to raise it in either a pre-answer dismissal motion or as an affirmative defense in its answer, here defendant preserved the defense by raising it with sufficient particularity in its answer (see defendant's Answer, par. 14).
To the extent this Court's Order dated April 7, 2017 required that all motions be made returnable on or before July 19, 2017, which did not occur here, the Appellate Division, Third Department, has made clear that given the jurisdictional nature of the time limitations contained in Court of Claims Act § 10, waiver of the defense that the claim was untimely may only occur as specifically set forth in Court of Claims Act § 11 (c), i.e., by failing to preserve the defense in either a pretrial dismissal motion or in a responsive pleading (see Steele, 145 AD3d at 1364). Inasmuch as defendant preserved this defense in its answer, its failure to timely move for dismissal did not effect a waiver. Accordingly, the claim must be dismissed.
Let judgment be entered accordingly.
November 6, 2017
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims