Opinion
# 2017-041-063 Claim No. 129386 Motion No. M-90249 Motion No. M-90575
09-06-2017
BUCKY A. BOULA v. THE STATE OF NEW YORK
BUCKY A. BOULA Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Christina Calabrese, Esq. Assistant Attorney General
Synopsis
Defendant's motion to dismiss wrongful confinement claim served on Attorney General multiple times is decided as follows: Service of unverified claim upon Attorney General by regular mail is insufficient to obtain jurisdiction over defendant; service of verified claim by regular mail is insufficient to obtain jurisdiction over defendant; claim served on Attorney General by certified mail, return receipt requested, within two years of accrual, is sufficient to grant jurisdiction over defendant where claimant served a timely notice of intention to file a claim.
Case information
| UID: | 2017-041-063 |
| Claimant(s): | BUCKY A. BOULA |
| Claimant short name: | BOULA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129386 |
| Motion number(s): | M-90249, M-90575 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | BUCKY A. BOULA Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Christina Calabrese, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 6, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the claim because it was unverified when initially served, was subsequently served by regular mail, rather than certified mail, return receipt requested, and was next served beyond the time limitations set forth in the Court of Claims Act. The claimant opposes the defendant's motion to dismiss. The claimant moves for an order "granting claimant's motion request to treat the defendant's Motion to Dismiss as a Summary Judgment Motion." Defendant opposes the claimant's motion.
The claim was filed with the Clerk of the Court of Claims on March 3, 2017. The claim was thereafter served on the Attorney General on March 15, 2017 and rejected and returned that same day via letter to claimant, advising that the unverified claim was being treated as a nullity pursuant to CPLR 3022.
Court of Claims Act 11 (b) provides that the "claim . . . shall be verified in the same manner as a complaint in an action in the supreme court." The Court of Appeals has interpreted the provisions of Section 11 (b) as "'substantive conditions upon the State's waiver of sovereign immunity'" (Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007], quoting Lepkowski v State of New York, 1 NY3d 201, 207 [2003]), and instructed that "[t]he failure to satisfy any of the conditions is a jurisdictional defect" (Kolnacki at 281).
"Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he [or she] may treat it as a nullity, provided he gives notice with due diligence to the . . . adverse party that he elects so to do" (CPLR 3022).
The court finds that the defendant exercised due diligence in immediately notifying the claimant that it was treating the claim as a nullity for lack of verification, as required by the provisions of CPLR Rule 3022 and Court of Claims Act 11 (b).
The unverified claim served on the Attorney General by certified mail, return receipt requested, on March 15, 2017 is insufficient to obtain jurisdiction over defendant.
On April 3, 2017 claimant served a further copy of the claim on the Attorney General by regular mail, rather than by certified mail, return receipt requested.
Court of Claims Act § 11 (a) (i), provides, at relevant part, that:
"The claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, 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."
Claimant is required to satisfy the "literal notice requirements of Court of Claims Act § 11" (Femminella v State of New York, 71 AD3d 1319 [3d Dept 2010]). Any manner of service other than personal service or certified mail, return receipt requested, is insufficient to strictly fulfill the statutory criteria (Femminella 71 AD3d at 1319).
Service of a claim by regular mail upon the Attorney General is insufficient to obtain personal jurisdiction over the defendant (Fulton v State of New York, 35 AD3d 977, 978 [3d Dept 2006], lv denied 8 NY3d 809 [2007]; see Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 [2003]; Thompson v State of New York, 286 AD2d 831 [3d Dept 2001]; Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001], rearg denied 96 NY2d 855 [2001]).
The claim served by claimant on the Attorney General by regular mail on April 3, 2017 is insufficient to obtain jurisdiction over defendant.
On March 30, 2017 claimant had previously served a further copy of the claim on the Attorney General by certified mail, return receipt requested. The claim alleged that defendant wrongfully confined claimant at Clinton Correctional Facility as a result of an inmate disciplinary proceeding arising from a cell search on June 12, 2015 and a resulting misbehavior report issued on June 13, 2015.
The disciplinary determination found claimant guilty of possession of drugs or drug paraphernalia based upon his admitted possession of a list of ingredients required to make methamphetamine. Claimant was sentenced to 60 days keeplock (30 of which were suspended), among other penalties.
Claimant alleges that defendant found him guilty of the charge despite claimant having explained to the disciplinary hearing officer that the ingredients list was not a recipe and was information pertaining to his criminal case which involved a charge alleging that he had manufactured amphetamine.
On July 1, 2015, claimant administratively appealed the disciplinary determination and provided to Clinton disciplinary review officers a case (Matter of Nylander v Prack, 123 AD3d 1336 [3d Dept 2014]) holding that possessing a list of ingredients to make crystal methamphetamine did not constitute substantial evidence to support a charge of drug or drug paraphernalia possession.
Claimant was apparently released from confinement on July 13, 2015.
On July 22, 2015, defendant denied claimant's administrative appeal. Claimant commenced an Article 78 proceeding challenging the disciplinary determination on August 11, 2015.
On August 26, 2015, claimant served a notice of intention to file a claim, regarding his allegedly unlawful confinement resulting from the June 12, 2015 cell search. The notice of intention to file a claim was served on the Attorney General by certified mail, return receipt requested.
Claimant asserts that on October 21, 2015, the Acting Commissioner of the Department of Corrections and Community Supervision administratively reversed the disciplinary determination, without further explanation, and the Article 78 proceeding was thereafter dismissed as moot.
Claimant's cause of action for wrongful confinement accrued on or about July 13, 2015 when his confinement ended (see Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 [2005]: claim for wrongful confinement accrues on "the date on which [claimant's] confinement terminated").
The claim alleges, among other things, that:
"[E]veryone from the author of the Tier 3 misbehavior report . . . to the affirming of the Superintendents hearing . . . was negligent, biased, unjust, malicious and showed blatant deliberate indifference about claimant's situation, also there was complete lack of due diligence in conducting an investigation prior to keeplocking claimant to ascertain whether or not claimant had, in fact, violated a prison rule."
Court of Claims Act 10 (3) provides as follows:
"A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim."
The Appellate Division, Third Department, has explained that a claim for excessive confinement may be based on either intentional or negligent conduct. In Matter of Kairis v State of New York (113 AD3d 942 [3d Dept 2014]), the court held that:
"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 [1997]; cf. Vazquez v State of New York, 23 Misc 3d 1101[A], 2009 NY Slip Op 50527[U], n 2 [2009], affd 77 AD3d 1229 [2010]). Such a claim accrues 'upon a claimant's release from confinement' (Davis v State of New York, 89 AD3d 1287, 1287 [2011])".
The Kairis court, in discussing whether a claim is predicated upon intentional or negligent conduct, cites Ramirez v State of New York (171 Misc 2d 677 [Ct Cl 1997]), which discusses the potential disparate bases underlying a wrongful confinement claim. The language in Ramirez, at 682-683, is pertinent and persuasive:
"It is possible, of course, for there to be situations in which an inmate's confinement may have been imposed or prolonged intentionally, thus making it an "intentional" tort, but these would be extremely rare. Inquiring into correction officers' motives in each instance to determine if a claim was timely would be an unnecessary and potentially dangerous step. Litigating actions where the presence or absence of intent on the part of the State's employees would have jurisdictional implications *683 would be quite unworkable and unwise. Furthermore, if the tort of wrongful confinement is held to be the same as false imprisonment, there will be many more instances in which the one-year Statute of Limitations (CPLR 215) would apply but the one-year limitation found in Court of Claims Act § 10 (3-b) would not (i.e., where the wrongful confinement was caused by an unintentional act). This would bring back the confusion present before Court of Claims Act § 10 (3-b) was enacted (see, n 2)."
Here, the claim alleges, inter alia, negligence and lack of due diligence and there is no information in the record to show that the alleged conduct of defendant in confining claimant, characterized by the claim as "negligent," resulted from defendant's intentional rather than negligent acts or omissions.
Claimant properly served a notice of intention to file a claim within ninety days of the claim's accrual and has properly filed and served his claim within two years after the accrual of the claim.
"2 Prior to 1985, when Court of Claims Act § 10 (3-b) was enacted, the two-year time limitation contained in Court of Claims Act § 10 (3) applied to all tort actions against the State, intentional as well as unintentional. For discussions of the discrepancy between that statute and CPLR 215, see Trayer v State of New York (90 AD2d 263) and Wilson v State of New York (117 Misc 2d 608)."
The defendant's motion to dismiss the claim is denied. Claimant's motion "to treat the defendant's Motion to Dismiss as a Summary Judgment Motion" is also denied.
September 6, 2017
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion to Dismiss, filed April 14, 2017; 2. Affirmation of Christina Calabrese, dated April 13, 2017, and attached exhibits, including affidavit of Debra L. Mantell, sworn to April 14, 2017, and supplemental affidavit of Debra L. Mantell, sworn to April 19, 2017; 3. Affidavit of Bucky A. Boula in Response to Defendant's Motion to Dismiss, sworn to April 25, 2017; 4. Claimant's Notice of Motion to Treat Defendant's Motion to Dismiss as Motion for Summary Judgment, filed June 9, 2017; 5. Affidavit of Bucky A. Boula, sworn to June 6, 2017; 6. Affirmation of Christina Calabrese, dated June 21, 2017; 7. Response of Bucky A. Boula, dated July 3, 2017.