Defendant's motion to dismiss granted-untimely service and failure to state a cause of action,
|Claimant short name:||WORD|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||DIANE WORD
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
By: Matthew H. Feinberg, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 20, 2018|
|See also (multicaptioned case)|
The following papers numbered 1-2 were read and considered by the Court on defendant's motion to dismiss:
Notice of Motion, Attorney's Supporting Affirmation, Memorandum of Law and Exhibit.......................................................................................................................1
On April 13, 2018, defendant was served with a copy of Claim No. 131356 and the claim was filed with the Court on April 26, 2018. The claim alleges that claimant was wrongfully confined in solitary confinement until March 11, 2014 (Claim ¶ 3); that claimant was the victim of alleged medical malpractice from March 2004 until June 2017 (id. at 4); that claimant was the victim of "intentional tort, negligence tort, emotional tort and physical distress torts . . . inflicted on June 14, 2017" (id. at 5) and that, for 22 years beginning on March 26, 1996 until January 16, 2018, claimant was exposed to hazardous levels of indoor tobacco smoke from inmates smoking (id. at 3).
Defendant moves to dismiss the claim as untimely and for failure to state a cause of action upon which relief may be granted.
The service requirements of Court of Claims Act §§ 10 and 11 are jurisdictional in nature and require strict compliance as a precondition of suit against the State (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). A failure to comply with any of the service provisions set forth in Court of Claims Act §§ 10 and 11 is a jurisdictional defect compelling the dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 281  ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]; Welch v State of New York, 286 AD2d 496, 497-98 [2d Dept 2001]).
It is well settled that a cause of action for wrongful confinement accrues on the date when the confinement terminated (see Davis v State of New York, 89 AD3d 1287 [3d Dept 2011] [wrongful confinement claim accrued upon release from keeplock]; Johnson v State of New York, 95 AD3d 1455 [3d Dept 2012] [wrongful confinement claim accrued upon release from special housing unit]). Here, claimant's confinement terminated on March 11, 2014; therefore her cause of action for wrongful confinement accrued on that date. Since her claim was not brought within 90 days after the accrual of her cause of action for wrongful confinement, that cause of action warrants dismissal.
The cause of action alleging medical malpractice from March 2004 until June 2017 also warrants dismissal because the claim was not commenced within 90 days after the accrual dates alleged by claimant. Similarly, claimant's allegations that she was the victim of "intentional tort, negligence tort, emotional tort and physical distress torts . . . inflicted on June 14, 2017" warrant dismissal because the claim was not commenced within 90 days of the alleged accrual date of June 14, 2017.
With regard to claimant's allegation that she was exposed to hazardous levels of indoor tobacco smoke from inmates smoking from March 26, 1996 through January 16, 2018, claimant fails to allege a theory of liability or any recognized cause of action which would permit claimant to seek damages in the Court of Claims based upon defendant's alleged failure to provide claimant with a smoke-free environment (see Blake v State of New York, 157 AD3d 1019 [3d Dept 2018]; Matter of Alamin v New York State Dept. of Correctional Servs., 241 AD2d 586 [3d Dept 1997]). Thus, even if timely, the allegation warrants dismissal for failure to state a claim upon which relief may be granted.
Accordingly, defendant's motion to dismiss Claim No. 131356 is hereby GRANTED.
June 20, 2018
White Plains, New York
Judge of the Court of Claims