The State's motion to dismiss the claim of a pro se inmate alleging wrongful confinement is granted and the claim is dismissed. The claim was served more than 90 days after accrual and claimant's notice of intention was not filed within 90 days of accrual.
|Claimant short name:||ADAMS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-92258, M-92263|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||EUGENE ADAMS, Pro Se|
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
BY: Darren Longo, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 1, 2018|
|See also (multicaptioned case)|
Claimant Eugene Adams, an inmate proceeding pro se, alleges in claim no. 130643 that he was wrongfully confined in the Special Housing Unit (SHU) at Collins Correctional Facility (Collins). In lieu of answering the claim, defendant moves to dismiss the claim. Claimant opposes the motion.
Court of Claims Act § 10 provides that a claim for damages must be filed and served upon the Attorney General within ninety (90) days of accrual of the claim unless within the same ninety (90) day period, the claimant serves upon the Attorney General a notice of intention to file a claim in which event the claim must be filed and served within one (1) year of accrual of an intentional tort or within two (2) years of accrual of a negligent or unintentional tort. The service and filing requirements of Court of Claims Act § 10 and § 11 are jurisdictional in nature and are to be strictly construed. (Dreger v New York State Thruway Auth., 81 NY2d 721 ; Finnerty v New York State Thruway Auth., 75 NY2d 721 ). The failure to comply with the service requirements of the Court of Claims Act deprives the Court of jurisdiction, requiring dismissal of the claim (Byrne v State of New York, 104 AD2d 782 [2nd Dept 1984], app denied 64 NY2d 607 ). Defendant argues that neither a notice of intention nor a claim was served within ninety (90) days of accrual of the claim.
A claim for wrongful confinement accrues on the date when the confinement terminates (Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]). According to the claim (Defendant's Exhibit A), claimant was released from confinement on May 12, 2017. Accordingly, claimant had until August 10, 2017 within which to serve a notice of intention or a claim upon the Attorney General.
Pursuant to Court of Claims Act § 11 (a), service by certified mail, return receipt requested, upon the Attorney General is not complete until the claim or notice of intention is received in the office of the Attorney General. According to the affirmation of Assistant Attorney General Darren Longo, the claim was received by the Attorney General's Office on November 29, 2017 (see date stamp on claim). Included as part of defendant's exhibit A is a copy of the envelope in which the claim was served upon the Attorney General's Office. The envelope shows that the claim was mailed by certified mail, return receipt requested, on November 27, 2017. The claim served on November 29, 2017 was untimely as it was served more than ninety (90) days after accrual of the claim. Thus, the claim would have to be dismissed unless claimant had served a notice of intention within ninety (90) days of accrual.
According to the claim, claimant served a notice of intention to file a claim on July 17, 2017, which was within ninety (90) days of accrual of the claim. While the claim indicates that a copy of this notice of intention was attached to the claim, no such notice of intention was attached. The Attorney General's Office did receive a letter sent by claimant dated November 1, 2017 (a copy of this letter is annexed to the affirmation of Assistant Attorney General Longo as Exhibit B). In his November 1, 2017 letter, claimant alleges that his July 17, 2017 notice of intention was rejected as it was not verified. Included with claimant's November 1, 2017 letter was a verified notice of intention dated October 30, 2017. This notice of intention was dated and served well beyond the ninety (90) day statutory period.
In opposition to defendant's motion, claimant sent to Chambers a document entitled "reply brief." This document was neither notarized nor filed with the Clerk of the Court in Albany as required. Defendant did not respond to this document and the document does not contain an affidavit of service; indicating to the Court that it probably was never served upon defendant. The Court need not consider this document but will refer to it only insofar as it seems to explain service of a notice of intention.
According to his "reply brief," claimant allegedly "served" his notice of intention by forwarding it to the Clerk of the Court in Albany for filing. The notice of intention was allegedly received by the Clerk's Office on July 17, 2017. Thereafter, claimant received a letter from the Clerk's Office advising him that he need not file his notice of intention, but that it still had to be served on the Attorney General. It does not appear that the July 17, 2017 notice of intention was ever served upon the Attorney General. From this reply brief, however, it appears that the first time the Attorney General's Office was served with a notice of intention was with claimant's November 1, 2017 letter, more than ninety (90) days after accrual of the claim.
In his reply, claimant blames his alleged difficulty in getting a verification page and in locating a notary on his ignorance of the law and on his incarceration. However, claimant's excuse is insufficient as neither incarceration nor ignorance of the law constitute acceptable excuses for his failure to timely serve a notice of intention or a claim (Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]; Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 ). Insofar as neither a notice of intention nor a claim was served on the Attorney General's Office within ninety (90) days of accrual of the claim, the claim is jurisdictionally deficient and must be dismissed.
Finally, claimant moves by letter for the appointment of a pro bono attorney to represent him with respect to the claim (Motion no. M-92263). This motion is moot as the Court has granted defendant's motion no. M-92258 to dismiss claim no. 130643 (Dove v State of New York, UID No. 2018-054-066 [Ct Cl, Rivera, J., June 20, 2018]).
Based on the foregoing, defendant's motion no. M-92258 to dismiss the claim is granted and claim no. 130643 is hereby dismissed, and claimant's motion no. M-92263 for the appointment of counsel is denied as moot.
August 1, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read by the Court:
1. Notice of motion no. M-92258 and affirmation of Assistant Attorney General Darren Longo dated December 22, 2017, with annexed Exhibits A-B;
2. Reply brief of Eugene Adams dated July 6, 2018; and
3. Letter dated January 8, 2018 from Eugene Adams designated as motion no. M-92263;