Claimant, a represented inmate, brought a claim for wrongful confinement. The State's motion for summary judgment dismissing the claim for lack of jurisdiction is granted and the claim is dismissed.
|Claimant short name:||FERGUSON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||FRANZBLAU DRATCH, P.C.
BY: Brian M. Dratch, Esq.
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
BY: Wendy E. Morcio, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 6, 2018|
|See also (multicaptioned case)|
Claimant Darious Ferguson alleges in claim no. 129854 that he was issued a Misbehavior Report on December 31, 2015, claiming that he and another unknown inmate assaulted an inmate while they were incarcerated. Following a Tier III hearing, claimant was found guilty of violent conduct, fighting, possession of a weapon and making threats. Claimant was sentenced to secure confinement in the Special Housing Unit (SHU) and loss of good time and privileges. The determination of the hearing officer was affirmed by Administrative Appeal on February 9, 2016, but the disposition was modified by reducing the number of days confined to SHU to 180 days. On September 29, 2016, Claimant's Article 78 petition in State Supreme Court was granted, vacating the Tier III hearing results and expunging claimant's record. Claimant brings claim no. 129854 seeking damages for wrongful confinement. By motion no. M-92747, defendant moves for summary judgment, dismissing the claim for lack of jurisdiction. Claimant failed to submit any opposition to defendant's 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. The service and filing requirements of the Court of Claims Act are jurisdictional in nature (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 [2d Dept 1984], lv 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 supporting affidavit of Anthony Rodriguez, Assistant Director Special Housing & Inmate Disciplinary Programs for the Department of Corrections and Community Services (DOCCS), claimant was released from SHU confinement on June 20, 2016. Accordingly, claimant had until September 19, 2016 within which to serve a notice of intention or a claim upon the Attorney General.(1)
Attached to the supporting affirmation of Assistant Attorney General Wendy E. Morcio as Exhibit A is a copy of a notice of intention to file a claim which according to the attached copy of the envelope in which it was served and to the date stamped on the notice of intention, the notice was served on December 12, 2016. Also attached to Ms. Morcio's affirmation as Exhibit B is a copy of the claim indicating by date stamp service on June 13, 2017. Insofar as neither the notice of intention nor the 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 (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]).
Accordingly, defendant's motion no. M-92747 is granted and claim no. 129854 is dismissed.
December 6, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion and affirmation of Assistant Attorney General Wendy E. Morcio dated August 21, 2018, with annexed Exhibits A-E; and
2. Supporting affidavit of Anthony Rodriguez sworn to August 21, 2018.
1. The ninetieth day after accrual of this wrongful confinement claim was a Sunday. Thus, claimant had until Monday, September 19, 2016 to serve a notice of intention or a claim (General Construction Law § 25-a ).