Opinion
# 2018-038-579 Claim No. 131368 Motion No. M-92358
08-23-2018
AUSTIN L. BALL #09A2081 v. THE STATE OF NEW YORK
No Appearance BARBARA D. UNDERWOOD, Attorney General of the State of New York By: Jeane L. Strickland Smith, Assistant Attorney General
Synopsis
Defendant's pre-answer motion to dismiss wrongful confinement claim granted. Claim was filed and served more that 90 days after its accrual.
Case information
| UID: | 2018-038-579 |
| Claimant(s): | AUSTIN L. BALL #09A2081 |
| Claimant short name: | BALL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131368 |
| Motion number(s): | M-92358 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | No Appearance |
| Defendant's attorney: | BARBARA D. UNDERWOOD, Attorney General of the State of New York By: Jeane L. Strickland Smith, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 23, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual formerly incarcerated in a State correctional facility, seeks compensation for allegedly wrongful confinement in a Special Housing Unit (SHU) and for constitutional violations. Defendant makes a pre-answer motion to dismiss the claim, arguing that it is untimely. Claimant has not submitted any papers in opposition.
As set forth in the claim, claimant was initially confined in SHU on January 4, 2018, was issued an inmate misbehavior report (IMR) on January 5, 2018, and was released from SHU on January 24, 2018 after having been found not guilty of the disciplinary charges in the IMR at a Tier 3 hearing. The claim alleges that claimant's constitutional and due process rights were violated in the conduct of the hearing and in the manner that he was confined. The claim alleges that it accrued on January 24, 2018.
It is well established that a claim for wrongful confinement accrues when the claimant is released from that confinement (see Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]; Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 [2005]), and accordingly, the claim correctly alleges an accrual date of January 24, 2018. The alleged constitutional violations also accrued on January 24, 2018, the date of his release from SHU (see Carrasquillo v State of New York, UID No. 2014-018-512 [Ct Cl, Fitzpatrick, J., Apr. 17, 2014]).
Court of Claims Act §§ 10 (3), 10 (3-b) and § 11 (a) (i) require that the claim be filed with the Court and served upon the Attorney General within 90 days after its accrual. It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional in nature, and that the failure to timely serve the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]). This claim was served on April 26, 2018 (see Strickland Smith Affirmation, ¶ 3, Exhibit A) and filed on April 27, 2018. Both of these dates are more than 90 days after the date of accrual of January 24, 2018, and thus, the claim is untimely and must be dismissed.
Accordingly, it is
ORDERED, that defendant's motion number M-92358 is GRANTED, and claim number 131368 is hereby DISMISSED.
August 23, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 131368, filed April 27, 2018; (2) Notice of Motion, dated June 1, 2018; (3) Affirmation of Jeane L. Strickland Smith, dated June 1, 2018, with Exhibit A; (4) Affidavit of Service of Laura Goosby, sworn to June 1, 2018.