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, the area supervisor(2) was not present when claimant was subjected to a pat frisk in the F and G corridor at Green Haven Correctional Facility (CF), and that as a result claimant was assaulted by two correction officers during the pat frisk (CF) (see Notice of Intention to File Claim, pp. 3-4). The notice of intention alleges that the area supervisor neglected his "constitutional duty to act reasonably to ensure [a] safe environment for claimant [who] was with brutal force kicked, choked, threatened, intimidated, degraded, dehumanized, [and] treated without dignity" (id. at pg. 5). The notice of intention alleges that as a result of the area supervisor's "failure to protect and neglect of duty to supervise," claimant's "prisoner rights and constitutional rights . . . were violated," and he suffered numerous physical and emotional injuries (id. at pp. 5-6).
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 the area supervisor "was not present and failed to perform the duty to supervise claimant's pat frisk . . . on July 5, 2015" that resulted in the alleged assault, 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 the Department of Corrections and Community Supervision "investigated this incident through its employees, many of who[m] are still available to the attorney general to be contacted with respect to this incident," and that claimant has exhausted his administrative remedies and has no other State remedy available to him (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 statute of limitations for the intentional tort of assault and battery expired (see Strickland Smith Affirmation, ¶¶ 2-6).(3)
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)
The instant motion seeking permission to treat the notice of intention as the claim is not timely and must be denied on that basis. To the extent the notice of intention asserts a cause of action sounding in negligence based on the area supervisor's alleged failure to be present during the July 5, 2015 pat frisk, CPLR 214 (5) provides that an action for negligence must be commenced within three years of its accrual. In the notice of intention, claimant alleges that the negligent act occurred on July 5, 2015, and the instant motion was filed with the Clerk of the Court of Claims on October 31, 2019, far more than three years after the statute of limitations for negligence accrued. The Court thus lacks the jurisdiction to grant claimant's application to treat the notice of intention to file a claim as the claim.
To the extent the notice of intention asserts a cause of action sounding in state constitutional tort for the alleged violation of claimant's state constitutional rights as a result of the area supervisor's negligent performance of his duties, the result is the same. 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-95113 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 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 Late 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. Although movant was unable to identify the area supervisor in the notice of intention, in his affidavit in support of the instant motion, he states that he is now able to identify the area supervisor (see D.G. Affidavit, ¶ 4).
3. Defendant incorrectly identifies the instant motion as one seeking late claim relief, although claimant has unmistakably noticed it as a motion to treat a notice of intention to file a claim as the claim (see Strickland Smith Affirmation in Opposition, ¶¶ 2-4). In addition to erroneously characterizing the nature of the relief sought, defendant also incorrectly analyzes the notice of intention as asserting a cause of action sounding in intentional tort even though it clearly alleges a violation of claimant's constitutional rights as a result of the area supervisor's negligent performance of his duties, and not to the alleged assault itself (see id.).
4. Although 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.