Claimant's motion to renew/reargue his previous motion for late claim relief denied. Claimant failed to identify any facts or law overlooked by the Court or any new facts or change in the law that would change the prior determination. Defendant's cross motion to dismiss the initial claim granted. Claim was untimely and was improperly served by regular mail.
|Claimant short name:||WILLIAMS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||MICHAEL WILLIAMS, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 11, 2020|
|See also (multicaptioned case)||2020-038-503|
On December 19, 2018, claimant, an individual currently incarcerated in a State correctional facility, filed a claim alleging that he was assaulted by correction officers on July 28, 2018 and wrongfully confined from July 28, 2018 to September 12, 2018 at Green Haven Correctional Facility (CF) (see Claim No. 132426). Defendant answered the claim (see Verified Answer, filed January 17, 2019). Claimant thereafter filed a motion for late claim relief pursuant to Court of Claims Act § 10 (6) with respect to those allegations. By decision and order filed on August 9, 2019, this Court denied claimant's motion with respect to the wrongful confinement cause of action but granted claimant's motion with respect to the assault cause of action, and claimant was directed to file and serve his claim within thirty days of the filing of the decision and order (see Williams v State of New York, UID No. 2019-038-557 [Ct Cl, DeBow, J., June 21, 2019]). Claimant now moves for leave to renew and reargue his motion for late claim relief with respect to the cause of action for wrongful confinement or, in the alternative, for leave to amend the proposed claim that was submitted with his motion for late claim relief (Motion No. M-94685). In a cross motion, defendant opposes claimant's motion and seeks to dismissal of Claim number 132426 as jurisdictionally defective (Cross Motion No. CM-94858).
Turning first to claimant's motion to renew and reargue his motion for late claim relief, "[a] motion for leave to reargue . . . shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d] ). A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination" (CPLR 2221 [e] ), and it must also "contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] ).
Here, claimant asserts that submissions by pro se prisoners "must be liberally construed" and "are to be held to a less stringent standard than those drafted by lawyers" and that "[c]onstrued liberally," his proposed claim sufficiently alleged that his confinement to the Special Housing Unit (SHU) "was not privileged and was in violation of DOCCS regulations" (Williams Affidavit, ¶¶ 3-4). Claimant argues that the Court failed to appreciate that, when read in the context of the claim as a whole, "it is clear . . . that [his] confinement to SHU was a pretext to cover up the fact [that claimant] was assaulted by correction officers without justification" (Williams Affidavit, ¶ 4). In opposition to the motion to renew and reargue, defendant asserts that the motion must be denied as untimely and, in any event, claimant has failed present "new facts, a change in the law or a misapprehension by the Court" (Rubinstein Affirmation, ¶ 11).(1)
Claimant does not assert that the Court overlooked or misapprehended any facts or law or that there are new facts or a change in the law that would affect the prior decision and order. Rather, claimant's only objection appears to be that the Court did not accept his theory of the case, i.e., that he was wrongfully confined in order to cover up the alleged assault by correction officers, and he repeats the argument, which the Court rejected in connection with his motion for late claim relief, that the dismissal of the disciplinary charges against him "is presumptive evidence" that he was wrongfully confined (Williams Affidavit, ¶ 4; see Williams v State of New York, UID No. 2019-038-557, supra). In short, claimant has not satisfied the requirements for a motion to reargue or renew, as required by CPLR 2221, but rather appears to seek a second bite at the apple on the ground that, as a pro se litigant, he was entitled to a more liberal reading of his proposed late claim, and his motion to renew and reargue must be denied (see Simpson v State of New York, UID No. 2018-038-573 [Ct Cl, DeBow, J., Aug. 1, 2018]).
To the extent claimant alternatively seeks leave to amend the proposed claim that was submitted with his late claim motion to address the deficiencies in his wrongful confinement claim as identified by the Court in connection with the prior motion for late claim relief, CPLR 3025 (b) contemplates the amendment of pleadings that have been properly filed and served. Claimant may file another motion for late claim relief with respect to his wrongful confinement claim, but he may not circumvent the motion process by seeking to amend a proposed claim that has already been rejected by the Court. Finally, with respect to defendant's assertion that it has yet to be served with the claim following the Court's granting in part of claimant's motion for late claim relief (see Rubinstein Affirmation, ¶¶ 5-7), when the Court granted that motion as to the assault cause of action, the Court ordered claimant to file and serve the proposed claim within thirty days of filing of the decision and order. In correspondence dated August 30, 2019 and received by the Court on September 9, 2019, claimant requested additional time to file and serve his claim (see Williams Correspondence, dated August 30, 2019). Chambers forwarded a copy of claimant's correspondence to the Assistant Attorney General defending the claim and solicited a response to claimant's request (see Broad Correspondence, dated September 10, 2019). Defense counsel failed to respond to the Court communication, and due to administrative error, claimant's request for additional time to file and serve his late claim was never addressed further. Accordingly, the Court will grant claimant's request for additional time to file and serve his late claim alleging that he was assaulted by correction officers at Green Haven CF on July 28, 2018.
Turning now to defendant's cross motion to dismiss Claim number 132426, which claimant filed and served before making his motion for late claim relief, defendant argues that the claim must be dismissed for lack of jurisdiction because it is untimely and was improperly served by regular first class mail, and it failed to sufficiently allege the location, time and date of the alleged incident (see Rubinstein Affirmation, ¶¶ 14-19). Claimant has opposed defendant's cross motion, but his response does not address the jurisdictional issues raised with respect to Claim No. 132426.(2)
Defendant's cross motion to dismiss the claim will be denied as unnecessary. According to the records of the Office of the Clerk of the Court of Claims, Claim No. 132426 was closed on August 28, 2019 due to claimant's failure to pay the filing fee. Because Claim No. 132426 is no longer pending, defendant's cross motion to dismiss on jurisdictional grounds is unnecessary and will be denied. In any event, if the Court were to consider the cross motion on the merits, it would be granted and the claim would be dismissed.
As an initial matter, Court of Claims Act § 11 (b) requires that a claim for personal injuries must state, among other things, "the time when and place where such claim arose." The pleading must set forth sufficient facts to satisfy each of the pleading requirements set forth in Court of Claims Act § 11 (b) (see Kolnacki v State of New York, 8 NY3d 277, 280-281 , rearg denied 8 NY3d 994 ), and the failure to do so is a fatal defect in subject matter jurisdiction that requires dismissal of the claim (see Lepkowski v State of New York, 1 NY3d 201, 209 ; see also Kolnacki, 8 NY3d at 281). Here, the claim alleges that an "inmate riot demonstration" occurred in the "west-side messhall" at Green Haven CF at approximately 5:30 p.m. on July 28, 2018, and that as a result of that incident, claimant was escorted into the "B.&.C corridor area" along with several other inmates to be subjected to a pat frisk search, during which claimant was assaulted by several correction officers (Claim No. 132426, ¶ 3). The claim further alleges that claimant was taken to the SHU immediately following the assault, where he remained until September 12, 2018, when all the disciplinary charges against him stemming from the incident were dismissed (see id.). In the Court's view, those allegations "provided sufficient details to permit a prompt investigation into the incident" (Rhodes v State of New York, 245 AD2d 791, 792 [3d Dept 1997]) and thus are sufficient to satisfy the pleading requirements of Court of Claims Act § 11 (b), and Claim number 132426 will not be dismissed on that basis.
However, defendant is correct that Claim number 132426 was untimely filed and served, and thus the Court lacks jurisdiction over the claim and it must be dismissed. A claim for personal injuries caused by the negligence or intentional tort of a state employee must be filed and served upon the Attorney General within 90 days of its accrual (see Court of Claims Act § 10 , [3-b]). The Court of Claims Act further requires that if a claim is served upon the Attorney General by mail, it must be accomplished by certified mail, return receipt requested (CMRRR) (see Court of Claims Act § 11 [a] [i]). It is well established that the service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721 722-723 ; Martinez v State of New York, 282 AD2d 580, 580 [2d Dept 2001], lv denied 96 NY2d 720 ).
The claim alleges that claimant was assaulted by multiple correction officers on July 28, 2018 and was wrongfully confined from July 28, 2018 to September 12, 2018 (see Claim No. 132426, ¶ 3). In order to be timely, the claim would have to have been served and filed no later than October 26, 2018 for the assault claim and December 11, 2018 for the unlawful confinement claim (see Campos v State of New York, 139 AD3d 1276, 1277 [3d Dept 2016] [unlawful confinement claim accrues when claimant is released from confinement]). However, the claim was not filed with the Clerk of the Court of Claims until December 19, 2018, and it was not served on the Attorney General until December 17, 2018 (see Rubinstein Affirmation, Exhibit 1). Thus, the claim was untimely and must be dismissed for lack of jurisdiction. Moreover, It is well settled that service of the claim by ordinary mail is insufficient to acquire personal jurisdiction over the defendant (Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 ), and the failure to effect service by CMRRR is a jurisdictional defect that requires dismissal of the claim (see Turley v State of New York, 279 AD2d 819, 819 [3d Dept 2001], lv denied 96 NY2d 708 , rearg denied 96 NY2d 855 ; Philippe v State of New York, 248 AD2d 827, 827 [3d Dept 1998]; Estrella v State of New York, UID No. 2008-018-634 [Ct Cl, Fitzpatrick, J., Sept. 3, 2008]). Although the affidavit of service accompanying the claim states that it was served via CMRRR, the envelope in which the claim was received by the Attorney General demonstrates that it was served by regular first class mail (see Rubinstein Affirmation, Exhibit 1), and claimant has not refuted this showing. Thus, Claim number 132426 must be dismissed as jurisdictionally defective due to improper service.
Accordingly, it is
ORDERED, that claimant's motion number M-94685 is DENIED; and it is further
ORDERED, that defendant's cross motion number CM-94858 is DENIED as unnecessary; and it is further
ORDERED, that claimant shall file and serve the proposed claim that accompanied motion number M-93760, as limited by the Court's prior June 21, 2019 decision and order, and such filing and service shall be accomplished within thirty (30) days of the filing date of this Decision and Order and in a manner required by the Court of Claims Act.
March 11, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 132426, filed December 19, 2018;
2. Verified Answer, filed January 17, 2019;
3. Decision & Order of Hon. W. Brooks DeBow, Williams v State of New York, UID No. 2019-038-557 (Ct Cl, DeBow, J., June 21, 2019);
4. Correspondence of Michael Williams, dated August 30, 2019;
5. Correspondence of Kimberley Broad, Principal Law Clerk, dated September 10, 2019;
6. Notice of Motion, dated August 23, 2019;
7. Williams Affidavit, sworn to September 3, 2019, with attachment (Proposed Amended Claim, dated August 23, 2019);
8. Notice of Cross Motion, dated October 30, 2019;
9. Affirmation of Heather R. Rubinstein, AAG, in Support of Opposition to Claimant's Motion and in Support of Defendant's Motion, with Exhibits 1-6, dated October 30, 2019;
10. Opposition & Reply of Michael Williams to Defendant's Cross-Motion, sworn to November 12, 201.
1. Contrary to defendant's assertion, claimant's motion to renew and reargue was timely served. The CPLR provides that "[a] motion for leave to reargue . . . shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry" (CPLR 2221 [d] ). Here, defendant served the Court's August 9, 2019 decision and order on claimant on August 16, 2019 (see Rubinstein Affirmation, Exhibit 4), and claimant served the instant motion on defendant on September 13, 2019 (see Williams Affidavit of Service, sworn to September 24, 2019). Thus, the motion insofar as it seeks leave to reargue is timely, and, inasmuch as "a motion for leave to renew is not subject to the same time constraints as govern a motion for leave to reargue," the Court declines to deny the motion as untimely (Luna v Port Authority of New York and New Jersey, 21 AD3d 324, 326 [1st Dept 2005]).
2. Claimant's opposition to defendant's cross motion fails to address whether dismissal of Claim No. 132426 is required but instead argues (1) that claimant should not be penalized for his failure to file and serve his proposed claim as directed in the Court's June 21, 2019 decision and order on his motion for late claim relief and (2) that he should be permitted to amend the proposed claim that was submitted with his motion for late claim relief (see Williams Opposition & Reply to Defendant's Cross-Motion, sworn to November 12, 201).