Opinion
Index No.: 400519/14
08-01-2014
In the Matter of the Claim of Aaron Thompson, Petitioner, v. THE CITY OF NEW YORK, Defendant.
DECISION/ORDER
Seq. No.: 001 HON. KATHRYN E. FREED: RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION.
| PAPERS | NUMBERED |
| PETITION AND NOTICE OF CLAIM | 1,2(Exs.A-E) |
| ANSWERING AFFIDAVIT | 3 |
UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THIS MOTION IS AS FOLLOWS:
Pro se petitioner Aaron Thompson moves, pursuant to General Municipal Law ("GML") § 50-e, for an order extending his time to file a notice of claim against respondent The City of New York ("the City"). After a review of the motion papers, the court file, and all relevant statutes and case law, the Court denies petitioner's motion. Factual and Procedural Background:
Petitioner, a former inmate, alleges that he is entitled to damages from the City because the City's Department of Corrections ("the NYCDOC") miscalculated his jail sentence, resulting in his incarceration for 10 months and 24 days longer than he should have been.
The undisputed facts are set forth in petitioner's sworn proposed notice of claim, which sounds in negligence and false imprisonment. Petitioner essentially asserts that, when he was transferred from the custody of the NYCDOC to the custody of the New York State Department of Corrections ("the NYSDOC"), the NYCDOC provided the NYSDOC with incorrect information regarding the length of his incarceration.
Although petitioner brought this motion by means of a petition, the petition was unsworn and thus the substantive facts set forth therein will not be considered in determining this motion.
In the proposed notice of claim, petitioner alleged that, in May of 2007, the NYCDOC miscalculated that he was entitled to a credit of 771 days against his 5-year state prison sentence and advised the New York State Department of Corrections of this incorrect fact. Ex. A. He claimed that, as of October of 2007, he had accumulated 1104 days of credit against his state sentence. See Proposed Notice of Claim, at par. 1.
All references are to exhibits to petitioner's proposed notice of claim.
On January 23, 2012, petitioner complained about the improper calculation of his credit by filing a grievance with the NYCDOC. Ex. B. Petitioner's next complaint about the improper credit was made to the DOC on May 6, 2013.
On September 20, 2013, the NYCDOC issued a "Jail Time Certification" reflecting that he had a credit of 1104 days. Ex. A.
On January 7, 2014, petitioner learned that his parole eligibility date on the 2007 sentence was August 23, 2008. Ex. D. However, he had remained in prison until he was released on July 21, 2009. Ex. E.
Petitioner now moves to file a late notice of claim against the City and petitioner opposes. Positions of the Parties:
Petitioner argues that his motion to file a late notice of claim should be granted because the City "was in possession of sufficient facts that was [sic] the cause of this claim to investigate and prepare any defense as early as September 20, 2013, or when [he] filed [his] grievance in January 2013." Proposed Notice of Claim, at par. 9.
In opposition to the motion, the City argues that petitioner's motion must be denied because petitioner's time to file a notice of claim has expired. The City argues that petitioner had 90 days from May of 2007, when the alleged miscalculation was made, to file a notice of claim. Alternatively, the City asserts that petitioner had 90 days from January 23, 2012, when he filed a grievance, to file a notice of claim. In either event, asserts the City, petitioner's application must be denied as untimely since he filed his proposed notice of claim on or about March 12, 2014, by which time the one year and 90-day period in which to seek an extension of time to file a notice of claim had expired. Conclusions of Law:
"In [GML] § 50-e, the Legislature enacted a protocol for serving a notice of claim as a condition precedent to a suit [founded upon tort] against a public corporation. Section 50-e (1) requires that the notice be served within 90 days after the claim arises. The Legislature, however, gave courts discretion to extend the time and devised criteria for determining whether to grant extensions. Section 50-e, the late notice statute, directs the court to consider, in particular, whether within 90 days or a reasonable time thereafter the public corporation . . . acquired actual knowledge of the facts underlying the claim. In deciding whether to grant an extension, the court must also consider a host of factors, including infancy and whether allowing late filing would result in substantial prejudice to the public corporation." Williams v Nassau Co, Med. Ctr., 6 NY3d 531, 535 (2006) (citation omitted). This Court does not have the discretion to grant leave to file a late notice of claim more than one year and 90 days after the accrual of the claim. See GML § 50-e (5); Tuitt v City of New York, 85 AD3d 640 (1st Dept 2011).
A claim generally accrues "when all of the elements required to allege a cause of action come into being." Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C214:2. The papers submitted do not provide sufficient information for this Court to determine whether a potential claim accrued in 2007, as they do not reflect precisely when petitioner learned of the alleged miscalculation. What is clear, however, is that petitioner knew about the miscalculation by January 23, 2012, on which date he filed a grievance regarding the alleged miscalculation with the NYCDOC. Ex. B. Therefore, petitioner's potential claim accrued no later than January 23, 2012.
Since the petitioner's potential claim, sounding in either negligence or false imprisonment, was founded upon tort, he had 90 days from January 23, 2012, the accrual date of the said potential claim, in which to file his notice of claim. See GML § 50-e (1)(a). Having failed to do so, he had one year and 90 days from the accrual date in which to seek leave to file a late notice of claim. See GML § 50-e (5). However, plaintiff failed to seek such leave during that period, which expired in April of 2013. Thus, this Court is without discretion to grant petitioner leave to file a late notice of claim and his motion must be denied. See Tuitt, supra at 641.
Therefore, in accordance with the foregoing, it is hereby:
ORDERED that the motion by petitioner Aaron Thompson seeking leave to file a late notice of claim is denied; and it is further,
ORDERED that this constitutes the decision and order of the Court. DATED: August 1, 2014
ENTER,
/s/_________
Hon. Kathryn E. Freed,
J.S.C.