New York State Court of Claims

New York State Court of Claims
ADAMS v. THE STATE OF NEW YORK DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, # 2021-053-526, Claim No. 132478, Motion Nos. M-95253, M-96647

Synopsis

The defendants' motion for summary judgment dismissing this pro se wrongful confinement claim is granted. The claim was untimely served as it was not served upon the Attorney General within one year after accrual of the claim.

Case information

UID: 2021-053-526
Claimant(s): JAMES ADAMS
Claimant short name: ADAMS
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 132478
Motion number(s): M-95253, M-96647
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: JAMES ADAMS, Pro Se
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
BY: Wendy E. Morcio, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: June 7, 2021
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant James Adams alleges in claim no. 132478 that he was wrongfully confined to the Special Housing Unit (SHU) for a period of fifteen months and thirteen days while he was incarcerated at Wende Correctional Facility (Wende). According to the claim, claimant completed his SHU sanction on October 22, 2017 and was held under administrative confinement until November 3, 2017, when he was transferred to Green Haven Correctional Facility (Green Haven). Claim no. 132478 was filed on January 2, 2019 and was transferred to my Individual Assignment Calendar by Order of the Acting Presiding Judge, the Hon. Richard E. Sise filed January 21, 2020.

The file and the docket sheet for claim no. 132478 failed to indicate that an answer to the claim had been filed, raising questions regarding service of the claim on the New York State Attorney General. By Order to Show Cause (M-95253) filed February 10, 2020, this Court ordered the parties to submit statements regarding the service of claim no. 132478 on the Attorney General. In response to the Court's Order to Show Cause, Assistant Attorney General Wendy E. Morcio submitted an affirmation in which she admitted that a claim had been served upon the Attorney General's office. Accordingly, the Court's Order to Show Cause, motion no. M-95253 is vacated.(1)

Thereafter, defendants moved by motion no. M-96647 for summary judgment dismissing the claim on jurisdictional grounds, alleging that the claim was untimely served. Claimant opposed this motion.

Claims alleging wrongful confinement in a correctional facility generally sound in intentional tort (Bennett v Division of Parole, UID No. 2020-038-590 [Ct Cl, DeBow, J., Dec. 23, 2020]). In order to commence an action against the State of New York based on an intentional tort, a claim must be filed and a copy served upon the Attorney General personally or by certified mail, return receipt requested, within ninety days after accrual of the claim, unless within the same statutory time period, a notice of intention to file a claim is served personally or by certified mail, return receipt requested, in which event, the claim must be filed and served within one year after accrual of the claim (Court of Claims Act 10 [3-b] and 11 [a][i]).

The service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Dreger v New York State Thruway Auth., 81 NY2d 721 [1992]; Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to comply with the service requirements of the Court of Claims Act deprives the Court of jurisdiction, requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Hodge v State of New York, 213 AD2d 766 [3d Dept 1995]).

A claim for wrongful confinement accrues when the confinement ends (Trammell v State of New York, 172 AD3d 1847 [3d Dept 2019]; Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]). Here, claimant was released from confinement on November 3, 2017 when he was sent to Green Haven. Claimant then had ninety days or until February 1, 2018 within which to serve a claim or a notice of intention to file a claim. According to his "Affidavit Confirming Service" sworn to March 30, 2021, claimant served the Attorney General with a notice of intention to file a claim on November 29, 2017. Attached to the claim as Exhibit D, is a copy of the notice of intention dated November 29, 2017 and a copy of the U.S. Postal Service green card receipts showing that the notice of intention was served on the Attorney General's Office on December 4, 2017.

Pursuant to Court of Claims Act 11 (a) (i), service by certified mail, return receipt requested, upon the Attorney General is not complete until the claim or notice of intention is received in the office of the Attorney General. Accordingly, service of the notice of intention was completed on December 4, 2017, when it was served on the Attorney General's Office. As December 4, 2017 is still within ninety days of accrual of the claim, the notice of intention was timely served. Claimant then had one year from accrual of the claim or until November 3, 2018, within which to serve the claim.

Claimant served a claim upon the Attorney General's Office on December 3, 2018 (Defendants' Exhibit A). This claim was rejected by the defendants as the verification was improperly notarized and promptly returned to the claimant with a notice indicating why the claim was being rejected (see December 3, 2018 notice of rejection attached to defendants' motion as part of Defendants' Exhibit B). In addition, defendant raised its rejection of the attempted December 3, 2018 service of a claim as its Fourth Affirmative Defense in the answer in compliance with Court of Claims Act 11 (c) (iii) (Defendants' Exhibit D).

Claimant subsequently served the Attorney General on December 26, 2018 with a claim that was properly verified and notarized. The claim was filed on January 2, 2019. On January 4, 2019, defendants served its answer to the claim and filed its answer by facsimile (Defendants' Exhibit D). The answer filed on January 4, 2019 did not contain a claim number as one had not as yet been assigned by the Clerk of the Court. The lack of a claim number on the answer as filed, together with claimant's common last name, may explain why the answer was never filed with claim number 132478. Defendants' answer was served on the claimant and claimant filed a reply to defendants' verified answer on January 25, 2019.

By its motion, defendants argue that the claim was untimely served and, thus, must be dismissed. This defense was raised with particularity as defendants' Third Affirmative Defense in its answer filed on January 4, 2019 (Defendants' Exhibit D).

In his "Affidavit Confirming Service," claimant alleges that he had until November 29, 2018 within which to serve his claim as he allegedly served his notice of intention on November 29, 2017. Claimant then alleges in his affidavit that he advised the Court and the Attorney General on November 14, 2018 that he was being transferred from Green Haven to the Erie County Holding Center and finally that he handed the claim to Deputy Scott Harvey, Law Library Supervisor at the Erie County Holding Center, on November 20, 2018 to notarize the claim and to mail it by certified mail. Claimant blames Deputy Harvey for failing to properly notarize the copy of the claim that was served on the Attorney General's Office on December 3, 2018.

Claimant's argument is misplaced. Most importantly, claimant did not have until November 29, 2018 within which to serve the claim. Pursuant to Court of Claims Act 10 (3-b), because claimant timely served a notice of intention to file a claim, claimant had one year after accrual of the claim within which to serve his claim. The parties agree that the claim accrued on November 3, 2017, when claimant was released from confinement and sent to Green Haven. Accordingly, claimant had one year, or until November 3, 2018, within which to serve and file his claim.

Contrary to claimant's argument, by the time claimant notified the Attorney General on November 14, 2018 that he was being moved to the Erie County Holding Center, and by November 20, 2018, when claimant handed the claim to Deputy Scott Harvey to be notarized, and by the time the improperly notarized claim was served on December 3, 2018, the claim was already late. As the claim was not served upon the Attorney General within one year after accrual of the claim, the claim is jurisdictionally defective and must be dismissed (Torres v State of New York, 107 AD3d 1471 [4th Dept 2013]).

Accordingly, the Court's Order to Show Cause, motion no. M-95253 is vacated and defendants' motion for summary judgment, motion no. M-96647 is granted and claim no. 132478 is dismissed.

June 7, 2021

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims

The following were read and considered by the Court:

1. Order to Show Cause (Motion No. M-95253) filed February 10, 2020;

2. Affirmation of Assistant Attorney General Wendy E. Morcio dated March 25, 2021 in response to the order to show cause;

3. Defendants' notice of motion for summary judgment and the supporting affirmation of Assistant Attorney General Wendy E. Morcio dated March 25, 2021, with annexed Exhibits A-E;

4. Claimant's affidavit confirming service sworn to March 30, 2021, with annexed Exhibits A-C; and

5. Reply affirmation of Assistant Attorney General Wendy E. Morcio dated April 8, 2021(2) .


1. As will be later discussed, the claim was apparently served in December of 2018 and filed on January 2, 2019. The answer was dated January 3, 2019 and was submitted for filing the next day without a claim number as the Attorney General's Office had not yet been advised of the claim number assigned to the claim. As a result, the answer was apparently misfiled.

2. The Court's Order to Show Cause and defendant's summary judgment motion were adjourned several times due to claimant's relocation to Oregon, the retirement of the Assistant Attorney General originally assigned to this claim, and the Court's attempts to locate the answer which was apparently misfiled in Albany.