|Claimant short name:||SHATTUCK|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Frank Shattuck, Pro Se|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Albert D. DiGiacomo, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 25, 2020|
|See also (multicaptioned case)|
Claimant, a pro se inmate of the Department of Corrections and Community Supervision (DOCCS), moves for summary judgment on his cause of action alleging the use of excessive force. Defendant cross-moves to dismiss the claim pursuant to CPLR 3211 (a)) on the ground the claim was not timely filed or served.
Claimant alleges he was the victim of unnecessary force while he was confined to Central New York Psychiatric Center for treatment "in February 2018" (defendant's Exhibit C, Claim, ¶ 2). He served two Notices of Intention to File a Claim. Defense counsel indicates that the first such notice was received by regular mail "on or about" August 13, 2018 (DiGiacomo affirmation, ¶ 23) and the second such notice was received by certified mail, return receipt requested, on August 24, 2018. Both notices of intention allege only that the incident occurred "[i]n the middle of or towards the end of February I can't remember the exact date" (defendant's Exhibits A and B). A claim was thereafter filed and served on September 26, 2018 (see defendant's Exhibit C).
Court of Claims Act § 10 (3-b) requires that an intentional tort claim be filed and served within 90 days after the accrual of the claim unless a notice of intention to file a claim is served within that time period "in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim." The State's waiver of immunity under Section 8 of the Court of Claims Act is conditioned upon claimant's compliance with the conditions to suit set forth in article II of the Court of Claims Act, which include the time limitations set forth in Court of Claims Act § 10 (Lyles v State of New York, 3 NY3d 396, 400 ; Alston v State of New York, 97 NY2d 159, 163 ; Snickles v State of New York, 159 AD3d 1522 [4th Dept 2018], appeal dismissed 31 NY3d 1130 , lv denied 32 NY3d 911 ). Consequently, statutory requirements conditioning suit must be " 'strictly construed' " (Kolnacki v State of New York, 8 NY3d 277, 280 , rearg denied 8 NY3d 994 , quoting Lichtenstein v State of New York, 93 NY2d 911, 913 ; Young v State of New York, 138 AD3d 1357 [3d Dept 2016]) and, absent waiver of an objection to the timeliness of the claim (see Court of Claims Act § 11 [c]), dismissal of a claim not served or filed in accordance with Court of Claims Act § 10 is required (Jones v State of New York, 171 AD3d 1362, 1363 [3d Dept 2019], appeal dismissed 33 NY3d 1056 ; Baysah v State of New York, 134 AD3d 1304, 1306 [3d Dept 2015]; Encarnacion v State of New York, 112 AD3d 1003 [3d Dept 2013]; Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]). Notably, "[b]oth filing with the court and service upon the Attorney General must take place within the relevant statutory period" (Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept 2013], citing Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ).
Here, even if it were assumed that the incident giving rise to the claim occurred on the last day of February 2018, neither a notice of intention nor a claim were served within 90 days thereof. The properly served notice of intention was not received in the Office of the Attorney General until August 24, 2018 and the claim was not served or filed until September 26, 2018, more than three months after the claim accrued. Defendant's objection to the timeliness of the claim having been raised with sufficient particularity as an affirmative defense in its answer, the claim must be dismissed (see Court of Claims Act § 11 [c]; defendant's Exhibit D, ¶ 19).Accordingly, defendant's cross motion is granted and the claim is dismissed. Claimant's motion is denied as academic.
February 25, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims