Defendant's motion to dismiss claim is granted where notice of intention to file a claim, and claim, were each served more than ninety days after accrual.
|Claimant short name:||MCCRAY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended to state the proper defendant.|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||JOHN MCCRAY
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Dorothy M. Keogh, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 14, 2020|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim because the Court lacks jurisdiction over the claim which was served more than ninety days after accrual. Claimant opposes the defendant's motion to dismiss the claim.
The claimant alleges that defendant's correction officers assaulted him on August 18, 2018 at Sing Sing Correctional Facility and that defendant thereafter wrongfully confined claimant as a result of a disciplinary determination which was subsequently administratively reversed on July 12, 2019.
Court of Claims Act 10 §§ 3-a and 3-b, respectively, require that a claim to recover damages for personal injuries caused by the tortious conduct of an employee of the state, whether the defendant's conduct was intentional or unintentional, be served upon the attorney general within ninety days after the accrual of the claim.
Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 ).
The claimant's cause of action for assault accrued on August 18, 2018 and his cause of action for wrongful confinement accrued on September 11, 2018, when claimant, in his affidavit in opposition, admits he was released from disciplinary confinement (see Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 ; see Johnson v State of New York, 95 AD3d 1455 [3d Dept 2012]).
The claimant's notice of intention to file a claim was served on defendant on May 7, 2019 and his claim was served on defendant on October 16, 2019.
Both the notice of intention to file a claim and the claim were served more than ninety days after accrual of claimant's causes of action and are each untimely, as illustrated in Davis v State of New York (89 AD3d 1287, 1287-1288 [3d Dept 2011]):
"Pursuant to the Court of Claims Act, a claim or notice of intention to file a claim must be filed and served within 90 days after accrual of the cause of action (see Court of Claims Act § 10). The failure to comply with this provision constitutes a jurisdictional defect warranting dismissal of the claim . . .
Damages arising from wrongful confinement or false imprisonment, as alleged here, are reasonably ascertainable upon a claimant's release from confinement and, therefore, it is on that date that the claimant's cause of action accrues . . . Here, claimant was released from keeplock on March 22, 2008 and did not initiate this action either by notice of intention to file a claim or by filing and serving the claim within 90 days of this date. Accordingly, the Court of Claims properly dismissed the claim as untimely."
The defendant's motion to dismiss the claim is granted. The claim is dismissed.
January 14, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Defendant's Notice of Motion, filed November 7, 2019;
2. Affirmation of Dorothy M. Keogh, dated November 6, 2019, and annexed exhibits;
3. Affidavit in Opposition of John McCray, sworn to December 3, 2019, and annexed documents.