Defendant's motion to dismiss for lack of jurisdiction granted. Claim timely served but was filed more than 90 days after accrual. Request for late claim relief denied as beyond the statute of limitations.
|Claimant short name:||NELSON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||NELSON FRANCOIS, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Stephen Barry, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 1, 2019|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for allegedly wrongful confinement due to defendant's failure to timely complete a disciplinary hearing. The claim alleges that the incident giving rise to the misbehavior report occurred on July 19, 2013, that the misbehavior report was served upon claimant on July 20, 2013 and that the disciplinary hearing commenced on July 21, 2013. The claim asserts that the hearing was adjourned on July 21, 2013, that it was never completed in violation of the 14-day requirement of 7 NYCRR 251-5.1 (a), and that claimant was released from disciplinary confinement 17 days after the commencement of the hearing. The claim, which was filed on November 21, 2013, alleges that it accrued on July 19, 2013 (see Claim No. 123539, ¶ 4). Defendant moves to dismiss the claim on the ground that it is untimely. Claimant opposes the motion on the ground that the late filing has not prejudiced defendant, and, in the alternative, he requests that he be granted permission to file and serve a late claim in accordance with Court of Claims Act § 10 (6). Defendant's motion will be granted, and claimant will not be accorded late claim relief, for the reasons that follow.
Court of Claims Act §§ 10 (3), 10 (3-b) and 11 (a) (i) require that a claim alleging negligence or intentional tort be filed and served upon the Attorney General within 90 days after accrual of the claim. It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional in nature, and that the failure to timely serve the claim upon the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 ; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 ; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]). This fatal jurisdictional defect cannot be overcome by the mere absence of prejudice to defendant (see Byrne v State of New York, 104 AD2d 782, 784 [2d Dept 1984], lv denied 64 NY2d 607 ; Wilson v State of New York, 61 AD3d 1367, 1368 [4th Dept 2009]).
The claim alleges that it accrued on July 19, 2013, but, as defendant acknowledges, the claim seeks compensation for wrongful confinement, which does not accrue until the claimant's release from that allegedly wrongful confinement (see Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]; Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 ; Collins v McMillan, 102 AD2d 860, 861 [2d Dept 1984]; Ramirez v State of New York, 171 Misc2d 677, 680 [Ct Cl 1997]).(1) Here, the claim alleges that claimant was released 17 days after commencement of the hearing, or on August 7, 2013, and thus, to be timely the claim was to have been filed and served no later than November 5, 2013. Defendant acknowledges timely service of the claim upon the Attorney General on September 12, 2013 (see Barry Affirmation, ¶ 3; Exhibit A), but the claim was not filed until November 21, 2013, more than 90 days after its accrual. Thus, defendant's motion to dismiss the claim for lack of jurisdiction must be granted.
Turning to claimant's request for late claim relief, Court of Claims Act § 10 (6) does not authorize consideration of a request for such relief if it is requested after the expiration of the statute of limitations as set forth in the CPLR. Here, the most generous potentially applicable limitations period is 3 years (see CPLR 214 ), which would have expired on August 7, 2016, long before the instant request for late claim relief was made in 2019.
Accordingly, it is
ORDERED, that motion number M-93575 is GRANTED, and claim number 123539 is DISMISSED, and it is further
ORDERED, that claim number 123539 is STRICKEN from the May 9, 2019 trial calendar.
May 1, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Verified Claim No. 123539, filed November 21, 2013;
(2) Verified Answer, filed January 16, 2014;
(3) Notice of Motion, dated March 1, 2019;
(4) Affirmation of Stephen Barry, AAG, dated March 1, 2019, with Exhibits A-B;
(5) Claimant's "Motion of Opposition," dated March 18, 2019.
1. A court is not bound by a party's assertion of the date of accrual (cf. Western Elec. Co. v Brenner, 41 NY2d 291, 293 ; Gold v New York State Bus. Group, 255 AD2d 628, 630 n [3d Dept 1998]; Marine Midland Bank v Jerry Hamam, Inc., 96 AD2d 1137, 1138 [4th Dept 1983]).