Claim alleging causes of action for negligent supervision and wrongful confinement were dismissed as untimely.
|Claimant(s):||ERIC E. HARTMAN|
|Claimant short name:||HARTMAN|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Christopher J. Kalil, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 26, 2020|
|See also (multicaptioned case)|
Defendant moves for dismissal pursuant to CPLR 3211 (a) (2) and (7) on the grounds the claim fails to state a cause of action and was untimely filed and served.
Claimant, formerly an inmate in the custody of the Department of Corrections and Community Supervision, seeks damages for personal injuries allegedly sustained when he was assaulted by two inmates at Mid-State Correctional Facility on September 5, 2017. In addition, claimant alleges that a prison disciplinary determination finding him guilty of fighting and violent conduct was unsupported by the evidence.
To the extent the claimant seeks damages for injuries inflicted by other inmates, the cause of action is one for negligent supervision. Court of Claims Act § 10 (3) requires that a claim for negligence be filed and served upon the attorney general within ninety days after the accrual of the claim "unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim." Here, it is undisputed that the claim was filed December 6, 2017 and served upon the Office of the Attorney General on December 11, 2017. Filing and service of the claim both occurred beyond the applicable 90-day limitation period. In addition, an affidavit from Bonnie Cobb, Administrative Assistant 2 in the Office of the Attorney General, indicates that a notice of intention was not received in this matter. Accordingly, the claim alleging a cause of action for negligent supervision was untimely filed and served.
The claim is also untimely with respect to any cause of action for wrongful confinement arising from the prison disciplinary determination. Intentional torts such as wrongful confinement are controlled by Court of Claims Act § 10 (3-b). Court of Claims Act § 10 (3-b) requires that such a claim be filed and served upon the attorney general within 90 days following accrual of the claim "unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim." Inasmuch as neither a notice of intention nor a claim was served within 90 days of accrual, the claim is untimely as to this cause of action. In addition, claimant does not allege that the disciplinary determination was reversed or vacated, and this Court lacks jurisdiction to review such administrative determinations (see Green v State of New York, 90 AD3d 1577 [4th Dept 2011], rearg denied 92 AD3d 1269 , appeal dismissed 18 NY3d 901 , lv denied 18 NY3d 901 ).Based on the foregoing, the defendant's motion is granted and the claim is dismissed.
May 26, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Notice of Motion dated March 10, 2020;
2. Affirmation in support dated March 10, 2020, with Exhibits A-C.