Movant's motion for permission to file and serve a late claim is denied. Movant failed to attach a proposed claim, and papers submitted in support of the motion indicate that the cause of action is untimely.
|Claimant short name:||MCDOWELL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||By: Charles McDowell, Pro Se|
|Defendant's attorney:||Hon. Barbara D. Underwood, Attorney General
By: Ray A. Kyles, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 7, 2018|
|See also (multicaptioned case)|
Movant, an inmate proceeding pro se, moves for permission to file and serve a late claim alleging a cause of action for wrongful confinement. Defendant opposes the motion on the ground that movant failed to submit a proposed claim pursuant to Court of Claims Act § 10 (6).
The failure to attach a proposed claim is grounds alone for denying movant's late claim application (see Davis v State of New York, UID No. 2015-050-033 [Ct Cl, Lynch, J., July 22, 2015]; Larocco v State of New York, UID No. 2004-009-33 [Ct Cl, Midey, J., May 24, 2004]; Goble v State of New York, UID No. 2001-010-047 [Ct Cl, Ruderman, J., July 16, 2001]; Grant v State of New York, UID No. 2000-001-049 [Ct Cl, Read, P. J., Sept. 6, 2000]). However, the Court notes that even if movant attached a proposed claim, it appears that such claim would be untimely. Pursuant to Court of Claims Act § 10 (6), the Court may only consider a late claim application if the proposed cause of action is timely under the statute of limitations applicable to the cause of action under CPLR Article 2. Where a wrongful confinement claim alleges that due process violations occurred at the claimant's disciplinary hearing, and that those due process violations resulted in a finding of guilty, "the proposed claim is properly construed as sounding in intentional tort" (Roots v State of New York, UID No. 2017-038-543 [Ct Cl, DeBow, J., June 15, 2017]), and the one year statute of limitations for intentional torts set forth in CPLR 215 applies. The accrual date for a wrongful confinement claim is the date that movant was released from confinement (Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept. 2011]). Here, movant's affidavit in support of his motion states that movant was confined to the Special Housing Unit as a result of a Tier III disciplinary hearing that was later administratively reversed due to constitutional violations that took place at the hearing (see McDowell Aff. ¶ 5). Exhibit D to movant's affidavit shows that the hearing disposition was administratively reversed on December 23, 2016. Thus, it appears that movant's cause of action accrued on December 23, 2016. Accordingly, movant was required to file a late claim application no later than December 23, 2017. As movant did not file the instant late claim application until March 2, 2018, it is untimely.
Accordingly, it is hereby ordered that movant's motion for permission to file a late claim ( M-91938) is denied.
September 7, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion, dated February 27, 2018; and Affidavit in Support of Motion to File a Late Claim, sworn to by movant on February 27, 2018, with Exhibits A through D annexed thereto.
2. Affirmation in Opposition to Claimant's Motion to File Late Claim, affirmed by Ray A. Kyles, AAG on March 20, 2018, with Exhibit A annexed thereto.