Opinion
# 2020-038-524 Claim No. 133944 Motion No. M-95073
02-26-2020
ALFRED DORSETTE v. THE STATE OF NEW YORK
ALFRED DORSETTE, Pro se LETITIA JAMES, Attorney General of the State of New York By: Jeane L. Strickland Smith, Assistant Attorney General
Synopsis
Defendant's pre-answer motion to dismiss the claim as untimely granted. Notice of intention was untimely served and claimant cannot rely on the doctrine of equitable estoppel in the absence of any showing of misfeasance or malfeasance by facility mail room officials.
Case information
| UID: | 2020-038-524 |
| Claimant(s): | ALFRED DORSETTE |
| Claimant short name: | DORSETTE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133944 |
| Motion number(s): | M-95073 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | ALFRED DORSETTE, Pro se |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Jeane L. Strickland Smith, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 26, 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 seeking compensation for the alleged negligent interference with his right to practice his religion at Green Haven Correctional Facility (CF) on August 17, 2018. Defendant makes this pre-answer motion to dismiss the claim on the grounds that the Court lacks jurisdiction over the claim because it is untimely and that the claim fails to state a cause of action. Claimant opposes the motion.
The claim alleges that on the morning of August 17, 2018, claimant informed Correction Officer (CO) Nealson "that [he] had a religious callout for the Marcus Garvey [Rastafarian] event," and that CO Nealson "told [claimant] to wait on 4-company" (Claim No. 133944, ¶ 4). The claim alleges that "[a]fter waiting a while [claimant] once again told [CO] Nealson that [he] was on the call-out for the Marcus Garvey religious event" but that CO Nealson "stat[ed] that he didn't care, and ordered [claimant] to take it back upstairs to [his] company" (id. at ¶ 5). The claim alleges that "[CO] Nealson acted in a negligent manner and in disregard for [claimant's] religious beliefs and practices, for no valid or logical penalogical [sic] purpose" (id. at ¶ 6). The claim alleges that the Department of Corrections and Community Supervision (DOCCS) "has a duty . . . to insure that [claimant's] State and Federal Constitutional rights to practice his religion were adhered to and protected" and "to exercise reasonable care in ensuring that . . . claimant was able to attend his religious event and practice his religious beliefs," and that DOCCS
"breached that duty when they failed to exercise a standard of care that a reasonably prudent person would have exercised in a similar situation by ensuring [that] . . . claimant, who was on a special event package list specifically made to ensure members were able to attend, was escorted from his housing area to the area in the prison facility where the Rastafarian Marcus Garvey special even[t] was taking place"
(id. at ¶¶ 8, 14). The claim states that it is "for the tort of negligence for interfering with [claimant's] rights to practice [his] religious beliefs" (id. at ¶ 2), and seeks $250,000 in damages for defendant's "wrongful acts of negligence" (id. at Conclusion).
Turning first to defendant's motion to dismiss on timeliness grounds, defendant argues that the claim is untimely because claimant served a notice of intention to file a claim on the Attorney General on November 16, 2018, 91 days after the accrual date of August 17, 2018, that the notice of intention was therefore insufficient to extend claimant's time to file and serve the claim, and that the claim is therefore untimely and must be dismissed for lack of jurisdiction (see Strickland Smith Affirmation, ¶¶ 3-6). Claimant opposes defendant's timeliness argument, asserting that he placed the notice of intention to file the claim in the facility mailroom at Green Haven CF on November 8, 2018, and that he should not be prejudiced because it took eight days for the notice of intention to be delivered to the Attorney General (see Dorsette Affidavit in Opposition, ¶¶ 3-6).
To the extent that claimant alleges in his opposition papers that "the Attorney General's Office, either intentionally or unintentionally, failed and/or declined to sign for mail delivered by the United States Post Office" on the date it was received, thus rendering the notice of intention untimely (Dorsette Affidavit in Opposition, ¶ 6), claimant has provided no evidence to support such a claim, and the Court will not deny defendant's motion based on that unsubstantiated allegation.
Court of Claims Act §§ 10 (3) and 11 (a) (i) require that a claim sounding in negligence be filed with the Clerk of the Court of Claims and served on the Attorney General within 90 days after its accrual. A notice of intention to file a claim served on the Attorney General within 90 days of accrual will extend the time within which to serve and file a claim alleging negligence to two years after its date of accrual (see Court of Claims Act § 10 [3]). 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]).
Claimant states that while the claim refers to federal and state constitutional law, he asserts that the claim is clearly a claim for " 'negligence for interfering with [claimant's] rights to practice [his] religious beliefs' " (see Dorsette Affidavit in Opposition, ¶ 11, quoting Claim No. 133944, ¶ 2), and the Court will analyze the claim as such. --------
Here, the negligence cause of action asserted in the claim accrued on August 17, 2018, when claimant's free exercise right allegedly was violated by CO Nealson's refusal to allow him to participate in the Marcus Garvey event at Green Haven CF. However, the notice of intention to file a claim was not served on the Attorney General until November 16, 2018, which fell 91 days after the accrual of the claim. Claimant does not dispute that the notice of intention was untimely served but rather he appears to invoke the doctrine of equitable estoppel, arguing that the untimely service of the notice of intention resulted from a delay on the part of the Green Haven CF mail facility. To be sure, "[u]nder certain circumstances, misfeasance or malfeasance on the part of facility officials may be a proper excuse for failure to timely file thus warranting estoppel" (Rivera v State of New York, 5 AD3d 881, 881 [3d Dept 2004]; see Smith v State of New York, UID No. 2009-038-509 [Ct Cl, DeBow, J., Jan. 26, 2009]). Here, however, claimant has made no showing of any misfeasance or malfeasance by officials at the Green Haven CF mail facility that caused a delay in the processing of his legal mail. Rather, claimant merely questions in his submission why there was an eight-day delay from the time he allegedly deposited the notice of intention with the Green Haven CF mail facility on November 8, 2018 until it was delivered to the Attorney General on November 16, 2018. In light of claimant's failure to make any showing of misfeasance or malfeasance by officials at the Green Haven CF mailroom, application of the doctrine of equitable estoppel is not warranted, and defendant's motion to dismiss the claim for untimeliness will be granted (see Butler v State of New York, 126 AD3d 1247, 1247 [3d Dept 2015]; Rivera, 5 AD3d at 881; Phoenix v State of New York, UID No. 2019-028-555 [Ct Cl, Sise, J., June 25, 2019]; Tulger Const. Co. v State of New York, 45 Misc 3d 1224[A], 2013 NY Slip Op 52332[U], *3 [Ct Cl 2013]; Smith, UID No. 2009-038-509, supra).
In light of the jurisdictional dismissal on timeliness grounds, the Court need not address defendant's additional argument that the claim must be dismissed for failure to state a cause of action.
Accordingly, it is
ORDERED, that defendant's motion number M-95073 is GRANTED, and claim number 133944 is DISMISSED.
February 26, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: 1. Claim No. 133944, filed November 8, 2019; 2. Notice of Motion, dated December 13, 2019; 3. Affirmation of Jeane L. Strickland Smith, AAG, in Support of Motion to Dismiss, dated December 13, 2019, with Exhibits A-B; 4. Affidavit of Alfred Dorsette in Opposition to Motion to Dismiss, sworn to January 9, 2020.