Opinion
# 2020-038-588 Claim No. 134108 Motion No. M-96072
12-22-2020
KENNETH BROCKINGTON v. COMMISSIONER OF NYS - DOCCS
No Appearance LETITIA JAMES, Attorney General of the State of New York By: Michael T. Krenrich, Assistant Attorney General
Synopsis
Defendant's motion to dismiss claim for lack of jurisdiction granted. Claim was improperly served on the Attorney General by ordinary first class mail and was untimely inasmuch as the notice of intention to file the claim was served more than 90 days after accrual and thus did not extend claimant's time to file and served the claim, which, in any event, was served more than one year after the accrual of the wrongful confinement cause of action.
Case information
| UID: | 2020-038-588 |
| Claimant(s): | KENNETH BROCKINGTON |
| Claimant short name: | BROCKINGTON |
| Footnote (claimant name) : | |
| Defendant(s): | COMMISSIONER OF NYS - DOCCS |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 134108 |
| Motion number(s): | M-96072 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | No Appearance |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Michael T. Krenrich, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 22, 2020 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim alleging wrongful confinement at Gowanda Correctional Facility (CF) between September 27, 2018 and October 15, 2018 due to an erroneous calculation of his release date. Defendant now moves to dismiss the claim for lack of jurisdiction and for being untimely. Claimant has not responded to the motion.
The claim alleges that claimant was returned to the custody of the Department of Corrections and Community Supervision (DOCCS) on September 21, 2018 "as a result of a sustained violation of parole with a maximum expiration release date of" September 27, 2018 (Claim No. 134108, ¶ 2). The claim alleges that
"[d]ue to the proximity of claimant's release date of 09/27/2018, and an error committed by [DOCCS] employees in correctly calculating claimant's release date and, further, in failing to ensure notification of the proper correctional facility employees (i.e., Inmate Records Coordinator), at Gowanda [CF], and previously at Elmira [CF] Reception Center, claimant, as a result of such error and failure, was held a total of 18 days past his release date, of 09/27/2018"
(id. [emphasis in original). The claim further alleges that claimant was released on October 15, 2018 "pursuant to an emergency release order issued by the DOCCS Central Office Staff" and only "[a]fter numerous phone calls by the claimant's family members to: Central Office and Gowanda [CF]" (id.).
Court of Claims Act § 11 (a) (i) requires that if a claim is served upon the Attorney General by mail, it must be accomplished by certified mail, return receipt requested (CMRRR). It is well established that the service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Martinez v State of New York, 282 AD2d 580, 580 [2d Dept 2001], lv denied 96 NY2d 720 [2001]). Service of the claim by ordinary mail is insufficient to acquire personal jurisdiction over the defendant (see Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 [2003]), and the failure to effect service by CMRRR is a jurisdictional defect that requires dismissal of the claim (see Turley v State of New York, 279 AD2d 819, 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001], rearg denied 96 NY2d 855 [2001]; Philippe v State of New York, 248 AD2d 827, 827 [3d Dept 1998]).
In support of its motion to dismiss, defendant has demonstrated that the claim was served upon the Attorney General not by CMRRR, but by ordinary first class mail on December 9, 2019 (see Krenrich Affirmation, ¶¶ 7-14). The envelope in which the claim was served on the Attorney General bears postage indicating that it was served by regular first class mail, with no indicia that it was served by CMRRR (see id., Exhibit A). Defendant preserved this argument by asserting it as an affirmative defense in its Verified Answer (see id. at ¶ 12, Exhibit B [Verified Answer, Twelfth Affirmative Defense]), and claimant has not opposed the motion and thus has not refuted defendant's showing that the claim was served improperly by regular mail. Defendant's motion to dismiss the claim for lack of jurisdiction due to improper method of service thus will be granted.
Defendant also seeks to dismiss the claim on the ground that claimant untimely served a notice of intention to file a claim on the Attorney General more than 90 days after the October 15, 2018 accrual date of the wrongful confinement cause of action, and thus did not extend claimant's time within which to file and serve the claim itself (see Krenrich Affirmation, ¶¶ 15-20, Exhibit C). As noted above, claimant has not responded to the motion.
Court of Claims Act §§ 10 (3-b) and 11 (a) (i) require for claims alleging intentional torts that a notice of intention to file a claim or the claim itself be served on the Attorney General within 90 days after the accrual of the claim. A timely served notice of intention will extend the time within which to serve and file the claim to one year after the date of accrual of a claim sounding in intentional tort (see Court of Claims Act § 10 [3-b]). 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, 75 NY2d at 722-723; 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]). A claim for wrongful confinement typically sounds in intentional tort (see Manuel v State of New York, UID No. 2018-038-561 [Ct Cl, DeBow, J., June 21, 2018]; Nanton v State of New York, UID No. 2017-038-578 [Ct Cl, DeBow, J., Oct. 12, 2017]), and accrues upon claimant's release from that confinement (see Campos v State of New York, 139 AD3d 1276, 1277 [3d Dept 2016]; Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011]; Miranda v State of New York, 42 Misc 3d 1226[A], 2012 NY Slip Op 52505[U], *4 [Ct Cl 2012], affd 113 AD3d 943 [3d Dept 2014]).
Here, as defendant correctly argues, although the claim asserts an accrual date of September 27, 2018 (see Claim No. 134108, ¶ 4), the claim alleges that claimant was released from the allegedly wrongful confinement on October 15, 2018 (see id. at ¶ 2), which is the correct accrual date for this wrongful confinement claim. In support of the instant motion, defendant has demonstrated that the notice of intention to file a claim was not served upon the Attorney General until January 18, 2019, more than 90 days after the October 15, 2018 accrual date (see Krenrich Affirmation, Exhibit C). Because the notice of intention was untimely served on the Attorney General, it was insufficient to extend claimant's time to file and serve the claim, which, as noted above, was not filed and served until December 9, 2019. Inasmuch as defendant has raised the jurisdictional defense that the claim was untimely (seeKrenrich Affirmation, Exhibit B [Seventh Affirmative Defense]), and claimant has not responded to the motion, the claim must be dismissed for lack of jurisdiction due to untimely service (see e.g. Manfredi v State of New York, UID No. 2019-038-607 [Ct Cl, DeBow, J., Nov. 14, 2019]). Moreover, even if the notice of intention had been timely served on the Attorney General, as defendant correctly argues, the claim would nevertheless be dismissed as untimely inasmuch as it was not filed with the Court or served on the Attorney General until December 9, 2019, after the expiration of the one-year statute of limitations on October 15, 2019 (see CPLR 215 [3]; see also Briggs v State of New York, UID No. 2016-038-572 [Ct Cl, DeBow, J., Dec. 2, 2016], aff'd 163 AD3d 1306 [3d Dept 2018], appeal dismissed 32 NY3d 1133 [2019], lv denied 33 NY3d 903 [2019]).
The Court notes that 90 days after October 15, 2018 fell on Sunday, January 13, 2019, and thus claimant's time to serve the notice of intention to file the claim was extended by operation of law to Monday, January 14, 2019 (see General Construction Law § 25-a [1]). --------
Accordingly, it is
ORDERED, that defendant's motion number M-96072 is GRANTED, and claim number 134108 is hereby DISMISSED.
December 22, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: 1. Claim No. 134108, filed December 9, 2019; 2. Verified Answer, filed January 17, 2020; 3. Notice of Motion to Dismiss, dated October 27, 2020; 4. Affirmation of Michael T. Krenrich, AAG, in Support of Motion to Dismiss, dated October 27, 2020, with Exhibits A-C; 5. Affidavit of Service of Katherine J. Hamilton, sworn to October 27, 2020.