New York State Court of Claims

New York State Court of Claims
JOHNSON v. THE STATE OF NEW YORK, # 2021-059-049, Claim No. 135978, Motion No. M-96683


Case information

UID: 2021-059-049
Claimant short name: JOHNSON
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 135978
Motion number(s): M-96683
Cross-motion number(s):
Claimant's attorney: Malcolm Johnson, pro se
By: Dorothy M. Keogh, Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 10, 2021
City: Hauppauge
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, an incarcerated person proceeding pro se, filed and served the instant claim on February 16, 2021 seeking damages for wrongful confinement. Defendant now moves to dismiss the claim on the grounds that (1) the claim was not filed or served within 90 days of the accrual date as required by Court of Claims Act 10 (3) and (3-b); (2) the claim fails to comply with Court of Claims Act 11 (b); and (3) the Court lacks jurisdiction over claimant's constitutional tort claims.

"A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Court of Claims Act 10 [3], [3-b]). Court of Claims Act 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." "[A]s suits against defendant are permitted only by virtue of its waiver of sovereign immunity and are in derogation of the common law, the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction and compels dismissal of the claim" (Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept 2013] [internal quotation marks and citations omitted]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Rodriguez v State of New York, 307 AD2d 657, 657 [3d Dept 2003]).

Claimant served a notice of intention to file a claim (NI) upon the Office of the Attorney (OAG) General on December 23, 2020 (Keogh Aff., Exhibit A). The NI stated that, on June 21, 2019, claimant was found guilty of violating prison rule 113.25 (drug possession) and served 20 days of keeplock confinement (id.). A claim alleging wrongful confinement accrues on the date that the confinement ends (Kairis v State of New York, 113 AD3d 942, 942 [3d Dept 2014]; Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011]). Therefore, the claim accrued on July 11, 2019--20 days after claimant was found guilty at his disciplinary hearing. Pursuant to Court of Claims Act 10 (3-b), claimant's time to serve the NI upon the OAG, or file and serve the claim, expired on October 9, 2019--90 days after the accrual date. Because the NI was not served upon the OAG until December 23, 2020, it is untimely and did not extend the time for claimant to file and serve a claim (see Court of Claims Act 10 [3-b] [claimant's time to file and serve a claim is extended to one year from the accrual date of the claim where the NI is timely served within 90 days of the accrual date]). Thus, the claim that was filed and served on February 16, 2021 is untimely and must be dismissed.

The Court has considered the parties' remaining contentions and finds them either without merit or unnecessary to this determination.

Based upon the foregoing, defendant's motion to dismiss the claim (M-96683) is granted. Claim number 135978 is dismissed.

September 10, 2021

Hauppauge, New York


Judge of the Court of Claims