Defendant's motion to dismiss the claim as untimely was denied because it icorrectly asserted Court of Claims Act § 10 (3) as a defense to a claim for wrongful confinement, which is an intentional tort controlled by the provisions of § 10 (3-b).
|Claimant short name:||HARTEY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||Honorable Eric T. Schneiderman, Attorney General
By: Glenn C. King, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 2, 2018|
|See also (multicaptioned case)|
Defendant moves to dismiss the instant claim seeking damages for wrongful confinement on the ground it was not timely filed and served.
According to the allegations in the claim, claimant, a pro se inmate, was charged with various rule violations on December 16, 2014. He was found guilty of the charges on January 6, 2015 following a tier III disciplinary hearing, and a 90-day period of confinement to the Special Housing Unit (SHU) and a loss of privileges was imposed. Claimant filed an administrative appeal which was affirmed on March 3, 2015, and sought judicial review in a proceeding pursuant to CPLR article 78. Claimant alleges that the hearing determination was administratively reversed while the article 78 proceeding was pending on the stated ground that the hearing tape was incomplete. Claimant alleges that he was "wrongfully confined on keep lock form [sic] December 16, 2014 [to] January 6, 2015 [and] transferred to the SHU on January 6, 2015 to March 26, 2015 three (3) months one (1) week, three (3) days total of 100 days" (defendant's Exhibit B, ¶ 10).
Defense counsel avers that a notice of intention to file a claim was served by certified mail, return receipt requested, on January 4, 2016, and that a claim was thereafter filed on March 2, 2016 and received in the Office of the Attorney General by certified mail, return receipt requested on March 4, 2016. Defendant served its answer to the claim in which it raised the following affirmative defense:
"The Court lacks subject matter jurisdiction over the claim and personal jurisdiction over the defendant, as the claim is untimely, in that neither the claim nor notice of intention, was served within ninety (90) days of the accrual of the claim, as required by Court of Claims Act Sections 10 (3) and 11" (defendant's Exhibit D, Third Defense).
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 after the accrual of the claim unless a notice of intention to file a claim is served within that same 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 that damages are reasonably ascertainable (Campos v State of New York, 139 AD3d 1276 [3d Dept 2016]; Johnson v State of New York, 95 AD3d 1455, 1456 [3d Dept 2012]; 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 March 26, 2015 and the notice of intention and claim were not served until January 4, 2016 and March 4, 2016, respectively. Nevertheless, by raising the time limitations of Court of Claims Act § 10 (3) as a defense, without raising the time limitations applicable to intentional torts contained in Court of Claims Act § 10 (3-b), the defendant waived its objection to the timeliness of the claim under Court of Claims Act § 10 (3-b).
Court of Claims Act § 11 (c) provides that an objection to the timeliness of a claim is waived unless raised with "particularity" either in a pre-answer dismissal motion or in a responsive pleading. The tort of wrongful confinement being intentional (see Broughton v State of New York, 37 NY2d 451, 456 , cert denied sub nom. Schanbarger v Kellogg, 423 US 929 ), the defendant waived its objection to the timeliness of the claim under the Court of Claims Act by citing the wrong section of the statute (see Court of Claims Act §11 [c]; Sinacore v State of New York, 176 Misc 2d 1 [Ct Cl, 1998]; see e.g. Esposito v State of New York, UID No. 2011-015-283 [Ct Cl, Collins, J., December 27, 2011);
Both Court of Claims Act § 10 (3) and Court of Claims Act § 10 (3-b) require either the service and filing of a claim or the service of a notice of intention to file a claim within 90 days of accrual. Court of Claims Act § 10 (3) differs from Court of Claims Act § 10 (3-b) in that the timely service of a notice of intention to file an unintentional tort claim extends the time to file and serve a claim until two years following accrual. Under Court of Claims Act § 10 (3-b), the timely service of a notice of intention to file an intentional tort claim extends the time for serving and filing a claim by only one year.
With regard to the particularity requirement of Court of Claims Act § 11 (c), an affirmative defense asserting the time limitations of the Court of Claims Act as a defense should, at a minimum, convey the following:
"(1) that the claim or notice of intention was not filed or served in a timely fashion; (2) that the claim should have been filed at some earlier time; and (3) the statutory authority of the requirement that was allegedly violated" (Sinacore v State of New York, 176 Misc 2d 1, 9 [Ct Cl, 2008]).
Here, the defendant's third affirmative defense met the first requirement set forth above, but failed to meet the second and third. By asserting the wrong statutory provision as a defense, defendant failed to convey the true period for the filing and service of an intentional tort claim, thereby potentially misleading a claimant in certain circumstances. For this reason, the Court finds that by asserting the wrong statutory provision as a defense, defendant failed to meet the particularity requirements of Court of Claims Act § 11 (c), thereby waiving any defense it may have had with regard to the timeliness of the claim under the Court of Claims Act. Accordingly, defendant's motion to dismiss the claim as untimely is denied.
May 2, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims