Motion to treat notice of intention to file a claim as the claim denied as untimely.
|Claimant short name:||D.G.|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||D.G., Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 9, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, moves for permission to treat a notice of intention to file a claim as the claim. Defendant opposes the motion on the ground that it is untimely.
The notice of intention alleges that on the evening of July 5, 2015, claimant was assaulted by an unknown correction officer and Correction Officer LaRosa during a pat frisk in the F and G corridor at Green Haven Correctional Facility (CF) (see Notice of Intention to File Claim, pp. 2-5). The notice of intention alleges that after the initial assault, the correction officers threatened claimant not to go out to recreation for several days and assaulted him again (see id. at pp. 6-10). The notice of intention alleges that claimant returned to his cell after having been ordered to do so by the correction officers (see id. at pp. 10-11). The notice of intention alleges that the two correction officers committed an assault and battery against claimant, violated claimant's "prisoner rights and constitutional rights," and caused him physical and emotional injuries (see id. at pp. 11-12).(2)
In support of his motion, claimant argues that because he is a lay person he was unaware of the applicable filing period for this claim and asks the court to "consider the handicaps and conditions under which [he] must make his claim," including that he has been sexually and physically assaulted by correction officers in the past, that he has been denied access to the law library and his legal papers and eyeglasses have been confiscated, that he was on a hunger strike while housed in the Green Haven CF psychiatric unit, and that he had undergone three years of physical therapy for a medical issue while at Green Haven CF (see D.G. Affidavit, ¶ 2 [a] - [g]). Claimant further argues that the State has been served with the notice of intention, that his claim is meritorious because he sustained injuries as a result of the unprovoked assault by two correction officers,(3) that the State was not prejudiced by claimant's failure to timely file a claim "[b]ecause the State was well aware of the facts" and has had the opportunity to investigate the incident by interviewing its employees, and that claimant has exhausted his administrative remedies and has no other State remedy available to him (see id. at ¶¶ 3-6). The State opposes the motion on the ground that it is untimely, having been made more than one year after the accrual of the claim for assault and battery (see Strickland Smith Affirmation, ¶¶ 2-6).
Court of Claims Act § 10 (8) (a) provides that "[a] claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim." A motion to treat a notice of intention as a claim must be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the [CPLR]" (id.; see Gibson v Roswell Park Cancer Institute Corp., 21 Misc 3d 638, 640-641 [Ct Cl 2008]). The Court lacks jurisdiction to grant a motion to treat a notice of intention as the claim where the proposed claimant has failed to file the motion within the prescribed time period (see Critton v State of New York, 12 AD3d 216, 216 [1st Dept 2004]; Maendel v State of New York, 178 Misc 2d 297, 299 [Ct Cl 1998]).(4)
As defendant correctly argues, the instant motion seeking to treat the notice of intention as the claim is not timely. CPLR 215 (3) provides that an action for assault and battery must be commenced within one year of its accrual. In his notice of intention, claimant alleged that the two correction officers committed an assault and battery against him on July 5, 2015. However, the instant motion was filed with the Clerk of the Court of Claims on October 31, 2019, more than three years after the statute of limitations for the assault and battery cause of action accrued. The Court thus lacks the jurisdiction to grant claimant's application to treat the notice of intention as the claim.
To the extent the notice of intention asserts a cause of action sounding in state constitutional tort as a result of the alleged assault (see Notice of Intention to File Claim, pp. 11-12), the instant motion is likewise untimely. Under CPLR 214 (5), a state constitutional tort is subject to a three-year statute of limitations (see Weimer v Lake, 268 AD2d 741, 742 [3d Dept 2000], lv denied 95 NY2d 755 ; Brown v State of New York, 250 AD2d 314, 318 [3d Dept 1998]). Here, as noted above, the claim accrued on July 5, 2015, and this motion was not filed until October 31, 2019, well over four years later. The motion is thus untimely with respect to any state constitutional tort claimant may be attempting to assert, and the Court lacks jurisdiction to grant the application to treat the notice of intention to file a claim as the claim.
Accordingly, it is
ORDERED, that claimant's motion number M-94833 is DENIED.
June 9, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Notice of Motion, dated October 26, 2019;
2. Affidavit of D.G. in Support of Motion for Treatment of Notice of Intention as Claim, sworn to October 26, 2019;
3. Notice of Intention to File Claim, undated;
4. Affirmation of Jeane L. Strickland Smith, AAG, in Opposition to Motion to File Notice of Intention to File a Claim, dated February 14, 2020;
5. Correspondence of Kimberley Broad, Principal Law Clerk, dated February 24, 2020;
6. Correspondence of D.G., dated March 2, 2020.
1. Although the notice of intention that is the subject of the instant motion does not contain any allegations of sexual assault, claimant alleges in his affidavit in support of this motion that he was the victim of a sexual assault, as defined in Penal Law article 130. In correspondence from chambers dated February 24, 2020, claimant was informed that based on the allegations in the affidavit, he may be entitled to the confidentiality protections of Civil Rights Law § 50-b and was directed to inform chambers in writing no later than March 16, 2020 whether he wished to waive those protections (see Broad Correspondence, dated Feb. 24, 2020). Claimant responded to the Court's correspondence by invoking the confidentiality protections contained in Civil Rights Law § 50-b (see D.G. Correspondence, dated March 2, 2020). Defendant was afforded an opportunity to argue that Civil Rights Law § 50-b had no application (see Broad Correspondence, dated Feb. 24, 2020) but failed to do so within the time allotted.
2. Neither claimant nor the Assistant Attorney General responding to the motion indicates when the notice of intention was served on the Attorney General's Office. However, the notice of intention was verified on September 17, 2015 (see Notice of Intention to File a Claim, pg. 13 [Verification, sworn to September 17, 2015]).
3. As noted above, claimant could not identify one of his two alleged assailants when he served the notice of intention, but he avers in his affidavit in support of the instant motion that he can now identify his previously unknown assailant (see D.G. Affidavit, ¶ 4).
4. Although, as previously noted, neither party has indicated when the notice of intention was served on the Attorney General, in the absence of any argument from the Assistant Attorney General responding to the motion with respect to the timeliness of the notice of intention, the Court will assume that the notice of intention was timely served on the Attorney General's Office and will analyze this motion accordingly.