Opinion
# 2017-040-059 Claim No. 123359 Motion No. M-89371 Cross-Motion No. CM-89981
05-24-2017
SCOTT FARRELL v. THE STATE OF NEW YORK
ANGELO FERLITO & ASSOCIATES, P.C. By: Angelo G. Ferlito, Esq.1 ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Paul F. Cagino, Esq., AAG Glenn C. King, Esq., AAG
Synopsis
State's motion to dismiss Claim as untimely served granted and Claimant's cross-motion to serve and file a late Claim pursuant to CCA § 10(6) denied as statute of limitations has expired.
Case information
By letter dated December 8, 2016, Mr. Ferlito advised the Court and Defense counsel that his office was retained by Claimant "for the purpose of filing a cross motion seeking permission to file a late claim as well as opposing the State's motion to dismiss for failing to timely serve the claim."
Decision
For the reasons set forth below, Defendant's Motion to dismiss the Claim pursuant to CPLR 3211(a)(2) and (8), on the basis that the Court lacks subject matter jurisdiction over the Claim and personal jurisdiction over the Defendant as a result of Claimant's failure to timely serve the Claim as required by Court of Claims Act §§ 10 and 11(a)(i), is granted. Claimant's Cross-Motion for permission to serve and file a Claim late pursuant to Court of Claims Act § 10(6) is denied.
This pro se Claim, which was filed with the office of Clerk of the Court on October 17, 2013. Claimant asserts that, on July 13, 2011, he was required to provide a urine sample to a Correction Officer (hereinafter, "CO") at Franklin Correctional Facility; that a urinalysis test was performed on the sample the following day, July 14, and the sample tested positive for opiates. Another test was performed on the same sample and the test again was positive for opiates (Cross-Motion, Ex. 9 [Misbehavior Report issued to Claimant]). Claimant was issued a Misbehavior Report for using a controlled substance on July 14, 2011 and was confined to his dormitory (Claim, ¶ 7). Claimant asserts that a Tier III disciplinary hearing was commenced on July 20, 2011 (id.). He asserts that the calibration report for the testing machine is supposed to be put into evidence at the hearing pursuant to Directive 4937 (V) (A) and that the hearing officer denied Claimant's request to have the information placed into evidence (id.). Claimant was found guilty of the charges against him and received a penalty of, inter alia, seven months' confinement to the Special Housing Unit (hereinafter, "SHU") (id.). Claimant was released from SHU on February 26, 2012 (see Cross-Motion, Ex. 6 [Hearing Disposition Rendered form] and State's Motion, Ex. D [Affidavit of Corey Bedard, Department of Corrections and Community Supervision employee]). Claimant asserts a cause of action for wrongful confinement.
Claimant has counsel appearing for purposes of this Motion only.
Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim (to the extent Claimant asserts injuries caused by negligence or unintentional torts) or within one year (to the extent he asserts intentional torts of State employees) (Court of Claims Act §§ 10[3], 10[3-b]; Kairis v State of New York (113 AD3d 942 [3d Dept 2014]). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual.
Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in Section 10 of the Court of Claims Act, either personally or by certified mail, return receipt requested. The statute further provides that service by certified mail, return receipt requested, is not complete until the Claim or Notice of Intention to File a Claim is received by the Attorney General. It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 11 gives rise to a jurisdictional defect (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]).
Pursuant to Court of Claims Act § 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense, either by motion to dismiss prior to service of the responsive pleading or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
In its Answer, filed with the office of the Clerk of the Court on November 27, 2013, Defendant asserted as its Fifth Defense that "this Court lacks subject matter jurisdiction over the [C]laim and personal jurisdiction over the [D]efendant, the State of New York, as the [C]laim is untimely in that neither the [C]laim nor a [N]otice of [I]ntention was served within ninety days of the accrual of the [C]laim as required by Court of Claims Act Sections 10(3); 10(3-b) and 11."
A cause of action for wrongful confinement accrues when the restrictive confinement ends (Campos v State of New York, 139 AD3d 1276, 1277 [3d Dept 2016]; Matter of Kairis v State of New York, supra; Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]; Santiago v City of Rochester, 19 AD3d 1061 [4th Dept 2005], lv denied 5 NY3d 710 [2005]; Charnis v Shohet, 2 AD3d 663 [2d Dept 2003]). For the purposes of this Motion, the Court takes Claimant's allegations as true (Leon v Martinez, 84 NY2d 83, 87 [1994]). Here, based upon the exhibits attached to the Motion and Cross-Motion referenced above, and Claimant's Affidavit submitted in Opposition to Defendant's Motion and in Support of his Cross-Motion (hereinafter, "Farrell Affidavit"), Claimant was released from SHU on February 26, 2012.
In his affidavit, Claimant asserts that, on June 6, 2013, the Appellate Division, Third Department reversed the Hearing Officer's July 26, 2011 determination and ordered a new hearing (Farrell Affidavit, ¶ 8, and Ex. 8 attached to Cross-Motion). At the conclusion of the new hearing on August 8, 2013, Claimant was found not guilty of the charges (id., ¶ 8, and Ex. 3 attached to Cross-Motion). Claimant states he believed that he had 90 days from the date he was found not guilty to file a Claim and that he filed his Claim within 90 days of August 8, 2013 (id., ¶ 9). However, Claimant was mistaken because a cause of action for wrongful confinement accrues when the restrictive confinement ends, as stated above. It is uncontroverted that Claimant's confinement in SHU ended on February 26, 2012. It is further not disputed that the Claim was served upon Defendant on October 21, 2013 (see Affirmation of Paul F. Cagino, Esq., Assistant Attorney General, ¶ 10), over one and one-half years after the restrictive confinement ended.
Court of Claims Act §10 is more than a statute of limitations; it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (Mallory v State of New York, 196 AD2d 925, 926 [3d Dept 1993]; DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973], affd 37 NY2d 735 [1975]; Antoine v State of New York, 103 Misc 2d 664 [Ct Cl 1980]). Failure to timely comply with the statutory service and filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Lyles v State of New York, 3 NY3d 396, 400-401 [2004]; Buckles v State of New York, 221 NY 418 [1917]; Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). The Court cannot waive a defect in jurisdiction that has been timely raised (see Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). The defect asserted was timely and properly raised with particularity in Defendant's verified Answer as set forth above, in accordance with Court of Claims Act § 11(c) (Czynski v State of New York, 53 AD3d 881, 882 [3d Dept 2008], lv denied 11 NY3d 715 [2009]; Villa v State of New York, 228 AD2d 930, 931 [3d Dept 1996], lv denied 88 NY2d 815 [1996]).
Based upon the foregoing, Defendant's Motion is granted and the Claim is dismissed for failure to timely serve it in accordance with Court of Claims Act §§ 10(3), 10(3)(b), and 11(a)(i).
The Court now turns to Claimant's Motion for permission to serve and file a Claim late pursuant to Court of Claims Act § 10(6). While Defense counsel asserts, in his affirmation submitted in opposition to Claimant's Cross-Motion, that Claimant has failed to attach a copy of the proposed Claim and the Cross-Motion should be denied, the Court disagrees. Claimant submitted as Exhibit 2 to the Cross-Motion a copy of his current Claim which the Court will accept as the proposed Claim (see Reply Affirmation of Angelo G. Ferlito, Esq., ¶ 3).
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. As stated above, Claimant is asserting a cause of action for wrongful confinement. As stated by the Appellate Division, Third Department in Kairis v State of New York, supra:
The applicable statute of limitations for a claim of excessive confinement in the prison disciplinary context depends on whether the claim is predicated on intentional or negligent conduct (see Court of Claims Act § 10[3], [3-b]; Ramirez v State of New York, 171 Misc 2d 677, 680-682 [Ct Cl] [1997]; cf. Vasquez v State of New York, 23 Misc 3d 1101[A] [Ct Cl] [2009], affd 77 AD3d 1229 [2010]). Such a claim accrues "upon a claimant's release from confinement" (Davis v State of New York, [supra]).
An intentional tort has a one-year statute of limitations (CPLR 215[3]), while negligence has a three-year statute of limitations (CPLR 214[5]). Claimant's Claim accrued on February 26, 2012 when he was released from SHU. Therefore, whether Claimant was wrongfully confined as the result of an intentional act or a negligent act, the applicable statute of limitations has expired. As a claimant is permitted to file a late Claim only if the underlying cause of action is not time barred (Arbor Hill Partners v New York State Commr. of Hous. & Community Renewal, 267 AD2d 675 [3d Dept 1999]; Marine Midland Bank v State of New York, 195 AD2d 871 [3d Dept 1993], lv denied 82 NY2d 661 [1993]), Claimant's Cross-Motion for permission to file a late claim regarding his wrongful confinement is denied.
May 24, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendant's Motion to dismiss and Claimant's Cross-Motion for permission to serve and file a claim late: Papers Numbered Notice of Motion, Affirmation in Support, and Exhibits attached 1 Notice of Cross-Motion, Affirmation in Opposition to Motion and in Support of Cross-Motion, Claimant's Affidavit, and Exhibits attached 2 Defendant's Affirmation in Opposition 3 Claimant's Reply Affirmation 4 Filed Papers: Claim, Answer