Defendant's motion to dismiss for lack of jurisdiction granted. Notice of intention failed to comply with substantive pleading requirements of Court of Claims Act § 11 (b) and thus was jurisdictionally defective and did not extend the time within which to file and serve the claim.
|Claimant(s):||CARLOS COLON, #09-A-4324|
|Claimant short name:||COLON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||No Appearance|
|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:||December 8, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim alleging that he was wrongfully confined at Green Haven Correctional Facility (CF) from April 12, 2019 to June 25, 2019. Defendant now moves to dismiss the claim on the grounds that it is untimely and that it fails to state a cause of action. Claimant has not responded to the motion.
The claim alleges that on April 12, 2019, claimant, who was residing in the Honor Block at Green Haven CF, was ordered to undergo a urinalysis test by Sergeant DeGraff on the grounds that claimant was exhibiting slurred speech and smelled of marijuana (see Claim No. 134921, ¶ 3, Exhibit A [Request for Urinalysis Test, dated Apr. 12, 2019]). The claim alleges that Sergeant DeGraff also directed Correction Officer (CO) Keith to search claimant's cell, that a "plexi glass shank wrapped in paper towel and masking tape to form a sheath" was discovered in his locker, and that on April 13, 2019, claimant was served with an inmate misbehavior report (IMR) charging him with violating disciplinary rules 113.10 (weapon), 113.11 (altered item), and 113.23 (contraband) (id., Exhibit B [IMR, dated Apr. 12, 2019]; see id., Exhibit D [Unusual Incident Report, dated Apr. 12, 2019], Exhibit E [DeGraff Memorandum, dated Apr. 12, 2019], Exhibit G [Keith Supporting Deposition, dated Apr. 12, 2019]).(1) The claim alleges that on April 30, 2019 claimant was found guilty of all three charges against him following a tier III disciplinary hearing and received 120 days of confinement in the Special Housing Unit (SHU) and 75 days loss of privileges (see id., Exhibit C [Superintendent Hearing Disposition Rendered, pg. 1]). The claim alleges that 45 days of claimant's time in the SHU were " 'suspended,' " and that claimant was confined to SHU from April 12, 2019 to June 25, 2019 (see id., ¶ 3).(2) The claim alleges that claimant appealed the disciplinary determination on May 22, 2019 (see id., ¶ 3, Exhibit H [Appeal Form, dated May 22, 2019]), and on July 26, 2019, claimant received correspondence from D. Venettozzi, Director of Special Housing/Inmate Disciplinary Program informing him that the April 30, 2019 disciplinary determination had been reversed on July 24, 2019 (see id., ¶ 3, Exhibit I [Venettozzi Correspondence, undated]). In a "memorandum of law" appended to the claim, claimant asserts that his due process rights were violated (see id., Memorandum of Law). Specifically, claimant argues that he was served with a false IMR in retaliation for having made complaints about the conduct of correction officers at Green Haven CF (id. at pp. 8, 11), and that his due process rights were violated at the Tier III disciplinary hearing because
"he was deprived of his right to present evidence in his defense; his hearing record shows that there was no request for an 'extension' read into the record, nor explanation of why the hearing commenced on April 22, 2019 (10 days) and ending on April 30, 2019 (18 days); inaccurate legal assistant; noted by claimant's witness (correction officer); Unusual Incident Report (4 pages) and other documentations [sic] requested were not provided until day of hearings concluded for disposition; [H]earing [O]fficer would not allow claimant time to review Unusal [sic] Incident Reports, nevertheless grant a continuance of the proceeding to allow claimant's reviewing of documentations [sic] in his cell and establishing his defense; Misbehavior Report by [CO] Keith shows that incident occurred on April 12, 2014, and reported date of April 12, 2014; claimant was denied access to his Hearing Tape . . . to assist in his preparation of his appeal"
(id. at pg. 10). The claim alleges that it is for " 'Wrongful Confinement' " (see id., ¶ 2).
The Court will first address defendant's argument that the claim is untimely as it implicates the Court's jurisdiction over the claim. Defendant argues that although claimant served a notice of intention to file a claim on the Attorney General on August 23, 2019, it was insufficient to extend his time to file and serve the claim because it did not comply with the substantive pleading requirements of Court of Claims Act § 11 (b) inasmuch as it does not "include any particularization of the nature of the cause of action and the defendant's conduct in regard to it" (Rubinstein Affirmation, ¶ 20; see id., Exhibit 1 [Notice of Intention to File a Claim, undated]). Defendant argues that the notice of intention alleged only that claimant was "confined in box for ticket received at Green Haven C.F. on 4-12-19 and reversed on July 24th, 2019" (id., Exhibit 1 [Notice of Intention to File a Claim, undated]), but that "[t]he claim now includes allegations for unlawful confinement based on [claimant's] being 'targeted,' " and that those allegations "are precluded because the time to file a claim with regard to the incident is beyond the required time frame for service" (id., ¶ 21). Defendant further argues that the notice of intention "fail[ed] to allege any wrongdoing on the part of defendant" (id.). As noted above, claimant has not responded to the motion to dismiss.
A claim for injuries to property or personal injuries allegedly caused by the 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 time within which to file and serve the claim will be extended by one year from the accrual date for a claim sounding in intentional tort if a notice of intention is served upon the Attorney General within that same 90-day period (see Court of Claims Act § 10 [3-b]). The Court of Claims Act requires that a notice of intention "shall state the time when and place where such claim arose" and "the nature of same" (Court of Claims Act § 11 [b]), and a notice of intention that does not set forth sufficient information to satisfy Court of Claims Act § 11 (b) fails to extend beyond 90 days the time within which to file and serve the claim (see Langner v State of New York, 65 AD3d 780, 782 [3d Dept 2009]). When the notice of intention is deficient, the related claim that is filed and served more than 90 days after accrual of the claim is properly dismissed for lack of jurisdiction (see Prisco v State of New York, 62 AD3d 978, 979 [2d Dept 2009], lv denied 13 NY3d 706 ). Court of Claims Act § 11 (b) "requires a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State" (Grumet v State of New York, 256 AD2d 441, 442 [2d Dept 1998] [internal quotation marks omitted]). Significantly, "the State is not required to go beyond the . . . notice of intention in order to investigate an occurrence, or ferret out information which should be provided under section 11 (b)" (Wilson v State of New York, 35 Misc 3d 227, 230 [Ct Cl 2011]). "A notice of intention . . . does not serve the same purpose as the claim itself, and for that reason need not meet the more stringent [Court of Claims Act § 11 (b) pleading] requirements imposed upon [a claim]," and thus "[i]t is enough if the notice of intention relates the general nature of the claim - a cause of action need not be stated - and provides sufficient detail to enable the State to investigate" (Epps v State of New York, 199 AD2d 914, 914 [3d Dept 1993] [internal quotation marks omitted]).
In order to be timely, the notice of intention was required to have been served on defendant on or before 90 days after the August 10, 2019 accrual date of the claim, or no later than November 8, 2019.(3) Inasmuch as the notice of intention was served on August 23, 2019, it was clearly timely. Here, however, the notice of intention did not comply with Court of Claims Act § 11 (b), and thus did not operate to extend the time to file and serve the claim, for the following reasons.
As noted above, the notice of intention contains the sole allegation that claimant was "confined in box for ticket received at Green Haven C.F. on 4-12-19 and reversed on July 24th, 2019" (Rubinstein Affirmation, Exhibit 1 [Notice of Intention to File a Claim]). While the notice of intention sufficiently alleges the time and place the claim arose, it does not allege the general nature of the claim inasmuch as it is bereft of any allegations of wrongdoing on the part of defendant that would enable defendant to investigate and ascertain the extent of its potential liability (see Jones v State of New York, UID No. 2020-018-132 [Ct Cl, Fitzpatrick, J., Aug. 19, 2020] [notice of intention was "patently inadequate because Claimant . . . failed to assert any allegations of what the State did wrong"]). Moreover, even assuming that the notice of intention could be construed as alleging that claimant was unlawfully confined, it lacks any allegations of action or inaction by defendant's agents or employees that rendered the confinement unlawful, and thus does not provide "sufficient detail to enable [defendant] to investigate" the claim (Epps, 199 AD2d at 914; see Lopez v State of New York, 2011-049-003 [Ct Cl, Weinstein, J.,Aug. 15, 2011] [notice of intention that alleged merely that defendant violated claimant's due process rights and failed to allege conduct at the disciplinary hearing that violated any regulatory or statutory provision was insufficient to provide defendant with notice of alleged wrongdoing in unlawful confinement claim]; cf. Rodgers v State of New York, UID No. 2019-041-047 [Ct Cl, Milano, J., July 23, 2019] [notice of intention was sufficiently definite with respect to wrongful confinement cause of action where it alleged that the wrongful confinement resulted from an erroneous IMR]), and thus fails to satisfy the pleading requirements of Court of Claims Act § 11 (b).
Inasmuch as the notice of intention is jurisdictionally defective, it did not operate to extend the time within which to file and serve the claim, which was filed and served on June 15, 2020 (see Rubinstein Affirmation, Exhibit 2), ten month after the claim's August 10, 2019 accrual date. Therefore, the claim must be dismissed as untimely (see e.g. Miller v State of New York, UID No. 2020-015-032 [Ct Cl, Collins, J., Mar. 10, 2020] [notice of intention that did not comply with Court of Claims Act § 11 (b) insufficient to extend time to file and serve claim, which was dismissed as untimely]; Walker v State of New York, UID No. 2020-038-522 [Ct Cl, DeBow, J., Feb. 25, 2020] [dismissing claim as untimely where notice of intention failed to comply with Court of Claims Act § 11 (b) and did not extend time to file and serve claim]).
In light of the dismissal of the claim on jurisdictional grounds, the Court need not address defendant's additional argument that the claim fails to state a cause of action.
Accordingly, it is
ORDERED, that defendant's motion number M-96003 is GRANTED, and claim number 134921 is hereby DISMISSED.
December 8, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim number 134921, filed June 15, 2020, with Exhibits A-N;
2. Memorandum of Law, sworn to February 20, 2020;
3. Notice of Motion to Dismiss, dated September 26, 2020;
4. Affirmation of Heather R. Rubinstein, AAG, in Support of Motion to Dismiss, dated September 26, 2020, with Exhibits 1-2;
5. Affidavit of Service of Francine Broughton, sworn to September 28, 2020.
1. The IMR is erroneously dated April 12, 2014 (see Claim No. 134921, Exhibit B).
2. The claim further states that 180 days of claimant's time in SHU were " 'Deferred' " (Claim No. 134921, ¶ 3). However, claimant received only 120 days in SHU, so the claim's allegation regarding the "deferment" of that time is unclear.
3. A claim for unlawful confinement accrues when the claimant is released from confinement (see Campos v State of New York, 139 AD3d 1276, 1277 [3d Dept 2016]; Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011]). Here, although the claim does not state an accrual date, it alleges that claimant was sentenced to 120 days of SHU confinement commencing on April 12, 2019 (see Claim No. 134921, ¶ 3), which would expire on August 10, 2019.