State's Motion to dismiss Claim as untimely on the basis that Claimant's Notice of Intent failed to meet the particularity requirements of CCA § 11(b) and, thus, did not extend Claimant's time to serve and file the Claim denied.
|Claimant short name:||TURPEAU|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Jose Turpeau, Pro Se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Douglas R. Kemp, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||May 8, 2018|
|See also (multicaptioned case)|
For the reasons set forth below, Defendant's Motion to dismiss the pro se Claim on the basis that the Notice of Intention fails to meet the specificity requirements of Court of Claims Act § 11(b) and, thus, did not extend Claimant's time to serve and file the Claim, resulting in the Claim being untimely served and filed pursuant to Court of Claims Act §10, is denied.
Claimant served a Notice of Intention to File a Claim upon Defendant on March 13, 2013 (Ex. A attached to Affirmation in Support of Douglas R. Kemp, Esq., Assistant Attorney General [hereinafter, "Kemp Affirmation"]). The Notice of Intention asserts that the Claim arose on December 17, 2012 at 12:45 p.m. at Greene Correctional Facility (hereinafter, "Greene") and is for false imprisonment. The Claim was filed with the office of the Clerk of the Court on June 24, 2013 and served upon the Attorney General on the same date (Kemp Affirmation, ¶ 3 and Ex. B attached). The Claim asserts that Claimant was placed in the Special Housing Unit (hereinafter, "SHU") at Greene on December 17, 2012 and charged with fighting, violent conduct, creating a disturbance, and gang activity (Claim, ¶¶ 3, 4). Following a disciplinary hearing, Claimant was found guilty of all the charges and placed in long term SHU (id., ¶ 6). The Claim further asserts that the charges were administratively reversed, and Claimant was released from SHU on February 21, 2013 (id., ¶¶ 8, 9). The correspondence reversing the determination, which is attached to the Claim, states the hearing officer's determination was reversed on February 15, 2013. It does not state any reason for the reversal. Claimant asserts that he was illegally detained and wrongfully confined to SHU (id., ¶ 11).
Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim (to the extent Claimant asserts injuries caused by negligence or unintentional torts) or within one year (to the extent he asserts intentional torts of State employees) (Court of Claims Act §§ 10, 10[3-b]). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual. If the Notice of Intention is defective, it does not extend Claimant's time to serve and file the Claim and, thus, the Claim filed with the office of the Clerk of the Court on June 24, 2013 and served upon Defendant on the same date would be untimely as a claim for false imprisonment/wrongful confinement accrues upon release from confinement (Campos v State of New York, 139 AD3d 1276 [3d Dept 2016]; Matter of Kairis v State of New York,113 AD3d 942 [3d Dept 2014]).
Court of Claims Act § 11(b) requires that, "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and … the total sum claimed" (see Demonstoy v State of New York, 130 AD3d 1337 [3d Dept 2015]). The statute further states that a Notice of Intention to file a claim "shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated."
Defendant asserts that the Notice of Intention fails to meet the specificity requirements of Court of Claims Act § 11(b) because it contains no information as to the nature of the false imprisonment. For example, it is unclear whether Claimant is alleging he was confined to SHU, or that Defendant failed to release him from prison upon his maximum expiration date (Kemp Affirmation, ¶ 15). Defendant further asserts that there is no information as to what the date December 17, 2012 signifies. Is that the date the confinement started, or the date it ended? Is it the date of his hearing, or the date a misbehavior report was issued? (id., ¶ 16). Defendant also argues that the Notice of Intention is silent regarding the nature of its wrongful conduct (id., ¶ 17).
It is well established that the failure to satisfy the substantive pleading requirements of Court of Claims Act § 11(b) is a jurisdictional defect that requires dismissal of the Claim (Kolnacki v State of New York, 8 NY3d 277, 280-281 ; Lepkowski v State of New York, 1 NY3d 201, 206-207 ; Czynski v State of New York, 53 AD3d 881, 882-882 [3d Dept 2008], lv denied 11 NY3d 715 ). As stated by the Appellate Division, Third Department, in Morra v State of New York (107 AD3d 1115, 1115-1116 [3d Dept 2013]):
Although "absolute exactness" is not required (Heisler v State of New York,78 AD2d 767, 767 [4th Dept] ), the claim must " 'provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of its liability' " (Robin BB. v State of New York, 56 AD3d 932, 932-933 [3d Dept] , quoting Sinski v State of New York, 265 AD2d 319, 319, [2d Dept] ). However, defendant is not required "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York [supra, at 208]). Failure to abide by these pleading requirements constitutes a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result (see Kolnacki v State of New York, [supra] at 281; Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept] , lv dismissed 15 NY3d 911 ).
Here, the Court concludes that Claimant's Notice of Intention fails to fulfill the substantive pleading requirements of a claim as provided in Court of Claims Act §11(b). The Notice of Intention failed to set forth the proper date of accrual, or the factual basis underlying Claimant's conclusory assertion of false imprisonment, which is the only cause of action asserted in the Notice of Intention.
Pursuant to Court of Claims Act § 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense either by motion to dismiss prior to service of the responsive pleading, or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
In its Answer, filed in the office of the Clerk of the Court on July 25, 2013, Defendant asserted, among its affirmative defenses, as its Fifth Defense, that the Claim fails to include any particularization of the State's conduct. The Court notes that the affirmative defense attacks the sufficiency of the Claim only. Defendant did not posit a similar affirmative defense that the Notice of Intention to File a Claim, likewise, failed to comply with Court of Claims Act § 11 with regard to its particularity. In addition, Defendant asserted as its Eighth Defense, that "[a]s the [N]otice of [I]ntention is defective, it is a nullity and did not serve to extend the time of filing a [C]laim pursuant to § 10(3) of the Court of Claims Act."
Thus, the question posed is whether Defendant raised those affirmative defenses with sufficient particularity to preserve it pursuant to Court of Claims Act § 11(c).
Judge Leonard Silverman of this Court set forth a concise summary of what "particularity" must mean in this situation in Fowles v State of New York (152 Misc 2d 837, 840 [Ct Cl 1991]):
For a statement to be sufficiently particular it must give notice of the transaction or occurrence intended to be proven and the material elements of it (CPLR 3013; Meese v Miller, 79 AD2d 237 [4th Dept] ). The primary purpose of a pleading is to advise the adverse party of a claim or defense (Lane v Mercury Record Corp., 21 AD2d 602 [1st Dept] , affd 18 NY2d 889 ). The pleading must provide notice and not be just a label (Huntington Utils. Fuel Corp. v McLoughlin, 45 Misc 2d 79 [Sup Ct, Suffolk County] ). A pleading must allege facts (Melito v Interboro-Mutual Indem. Ins. Co., 73 AD2d 819 [4th Dept] ). The mere allegation of a legal conclusion in an affirmative defense is insufficient (Griffo v Tauriello, 23 Misc 2d 430 [Sup Ct, Erie County] ).
Judge Silverman continued: "[a] claimant should not be left in a quandary to determine what an affirmative defense is referring to" (id.). In the Court's view, Defendant's Fifth and Eighth Defenses do not provide Claimant with sufficient notice of what Defendant intended to prove, i.e., that the Notice of Intention failed to meet the particularity requirements of Court of Claims Act § 11(b). Here, the Motion asserts that the Notice of Intention failed to meet the specificity requirements of Court of Claims Act § 11(b) and did not extend the time to serve and file the Claim. By contrast, the Fifth Defense asserts perceived deficiencies in the Claim. Accordingly, the affirmative defense raised in the State's Answer does not give Claimant notice of the transaction or occurrence intended to be provided, i.e., that the Notice of Intention, and not the Claim itself, failed to meet the particularity requirements of Court of Claims Act § 11(b). Likewise, the Eighth Defense provides only a legal conclusion, that the Notice of Intention is "defective" and "a nullity" without providing the facts as to why it is defective and a nullity. The Court finds and concludes that the affirmative defenses were not raised with the particularity required by Court of Claims Act § 11(c), and did not preserve the defense of lack of subject matter and personal jurisdiction because the Notice of Intention was ineffective owing to the lack of particularity. Thus, the defense has been waived (see Edgerton v State of New York, UID No. 2017-040-128 [Ct Cl, McCarthy, J., Sept. 25, 2017]; Hankins v State of New York, UID No. 2008-040-010 [Ct Cl, McCarthy, J., Feb. 25, 2008]). Accordingly, the State's Motion to dismiss is denied.
May 8, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's motion to dismiss:
Notice of Motion, Affirmation
in Support and Exhibits Attached 1
Filed Papers: Claim, Answer