Opinion
# 2015-015-113 Claim No. 125769 Motion No. M-87253
12-21-2015
ABELARDO C. ALEJANDRO v. THE STATE OF NEW YORK
Robert Dembia, Esquire Honorable Eric T. Schneiderman, Attorney General By: Michael T. Krenrich, Esquire Assistant Attorney General
Synopsis
Claimant's motion to extend his time to serve a claim nunc pro tunc pursuant to CPLR 2005 was denied.
Case information
| UID: | 2015-015-113 |
| Claimant(s): | ABELARDO C. ALEJANDRO |
| Claimant short name: | ALEJANDRO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125769 |
| Motion number(s): | M-87253 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Robert Dembia, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Michael T. Krenrich, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 21, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for an Order: (1) extending his time to serve the defendant with a copy of the claim nunc pro tunc pursuant to CPLR 2005, and (2) to compel a bill of particulars and discovery pursuant to CPLR 3042 and CPLR 3124.
Claimant, a former prison inmate, alleges he was imprisoned beyond both his conditional and maximum release dates and asserts the following causes of action:
"negligence, wrongful arrest; wrongful imprisonment, abuse of process, malicious prosecution, deprivation of civil rights, illegal arrest, illegal search and seizure, and violations [of] Constitutional Rights warranting relief and redress under 42 U.S.C. § 1983, and other wrongful conduct . . . beginning on or about June 1, 2014, continuing throughout the release from incarceration on or about December 29, 2014" (claimant's Exhibit 2, pp. 2-3).
The claim was filed in the Office of the Chief Clerk of the Court of Claims on March 10, 2015 but not served until April 1, 2015, more than 90 days after the claim accrued.
The time limitations for filing and service of a claim for both unintentional torts (Court of Claims Act § 10 [3]) and intentional torts (Court of Claims Act § 10 [3-b]) require that a claim be filed and served within ninety days after the date of accrual unless a notice of intention to file a claim is served on the Attorney General within that time frame. The law is settled that the time limitations in the Court of Claims Act are "distinctly concerned with the subject matter jurisdiction of the Court of Claims as the State has waived its sovereign immunity against suit only to the extent that claimants comply with the provisions of the statute" Lyles v State of New York, 3 NY3d 396, 400 [2004]). As a result, this Court lacks discretion to extend the time prescribed for the service of the claim by Court of Claims Act § 10 (3) or § 10 (3-b).
Where a notice of intention is timely and properly served, it extends the time to serve and file a claim by either one year for intentional torts (Court of Claims Act § 10 [3-b]) or two years for unintentional torts (Court of Claims Act § 10 [3]).
Claimant has filed a motion for late claim relief, which is pending.
To the extent claimant seeks an Order compelling discovery and a bill of particulars pursuant to CPLR 3124 and CPLR 3042, he failed to request a conference as required by 22 NYCRR 206.8 (b). In any event, defense counsel indicates that it has now complied with all of the claimant's demands for discovery.
Accordingly, claimant's motion is denied.
December 21, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers: 1. Notice of motion dated August 26, 2015; 2. Affirmation of Robert Dembia dated August 26, 2015 with exhibits; 3. Affirmation of Michael T. Krenrich dated October 15, 2015 with exhibits.