Opinion
# 2012-049-038 Claim No. 114526 Motion No. M-81563
08-08-2012
ENCARNACION v. THE STATE OF NEW YORK
Synopsis
Case information
UID: 2012-049-038 Claimant(s): BERNABE ENCARNACION Claimant short name: ENCARNACION Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 114526 Motion number(s): M-81563 Cross-motion number(s): Judge: David A. Weinstein Claimant's attorney: Bernabe Encarnacion, Pro Se Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Carol A. Cocchiola, Assistant Attorney General Third-party defendant's attorney: Signature date: August 8, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Bernabe Encarnacion, an inmate proceeding pro se, commenced this action by claim filed November 23, 2007. The claim alleges that an assistant attorney general wrongfully disclosed confidential information regarding Encarnacion by filing his medical records in an action in the United States District Court for the Western District of New York on August 23, 2007. Appended to the claim served on defendant is a letter from the assistant attorney general stating that a document "containing medical records was mistakenly electronically filed with the Court today," and requesting permission to file that document manually and under seal (Aff. in Supp. Ex. A). The letter is dated, stamped "received" by the Court, and "so ordered" on August 23, 2007. Encarnacion's claim states that he received a copy of the letter on August 27, 2007 (Claim ¶ 4).
The letter is attached to a copy of the claim submitted as an exhibit to the State's motion to dismiss, but was not included in the claim filed with the Court.
On May 18, 2012, the State moved to dismiss the claim on the ground that it was "neither timely filed nor timely served" under Court of Claims Act § 10. That motion is supported by the affirmation of an assistant attorney general, which asserts that the claim was received by the Office of the Attorney General on November 23, 2007, and filed on the same date - the date indicated by the file stamp of the Clerk of the Court of Claims. The State appends to its motion a copy of the envelope in which the claim was received, which bears a November 20, 2007 postmark, and a stamp from the Attorney General's Claims Bureau stating it was received by that bureau on November 23. The State's submission also includes a cover letter from claimant to the Clerk's Office of the Court of Claims, which is dated November 19, and stamped received by the Claims Bureau on November 23.
The State, in its verified answer, had raised as its First Affirmative Defense that "this Court lacks subject matter jurisdiction of the claim and personal jurisdiction over the defendant, the State of New York, as the claim is untimely in that neither the claim nor a notice of intention was served within ninety (90) days of the accrual of the claim . . . ." As its Second Affirmative Defense, defendant stated:
"The claim alleges an accrual date of 8/23/07. Pursuant to Court of Claims Act § 10, the claim had to be filed and served within 90 days of the accrual date. To be timely, the claim had to have been served and filed by no later than 11/21/07. The claim was filed on 11/23/07, and was received by the Office of the Attorney General on 11/23/07, and, as such, was not filed and served within 90 days of the accrual date. Claimant's failure to file and serve his claim within the time limit set forth in the Court of Claims Act deprives the Court of jurisdiction over the claim."
Thus, defendant raised in its answer, with the particularity required by Court of Claims Act § 11(c), the grounds for its current motion.
Claimant filed papers in opposition to defendant's motion, appending a disbursement request from the New York Department of Correctional Services, a certified mail receipt and a return receipt addressed to the Office of the Attorney General. The disbursement request is dated November 19, and was approved the following day. The return receipt indicates that the Office of the Attorney General received Encarnacion's claim on November 21, 2007 or 90 days after August 23. At a hearing on the motion conducted June 8, 2012, Encarnacion stated that he mailed the claim to the Court for filing on the same day it was sent to the Office of the Attorney General.
Discussion
A claim for negligence or intentional tort by a state officer must be "filed and served upon the attorney general within ninety days after the accrual of such claim," unless claimant has previously served a notice of intention on the Attorney General (Court of Claims Act §§ 10[3], 10[3-b]). A claim is filed in this Court "by delivering it to the office of the clerk either in person or by facsimile transmission or electronic means . . . or upon the receipt thereof at the clerk's office by mail" (7 NYCRR § 206.5[a]).
As a general rule, a cause of action accrues for purposes of the Court of Claims Act when damages are reasonably ascertainable (see Richard A. Hutchens CC, L.L.C. v State of New York, 59 AD3d 766 [3d Dept 2009]; Flushing Natl. Bank v State of New York, 210 AD2d 294 [2d Dept 1994], lv denied 86 NY2d 706 [1995]). In this case, that occurred on August 23, 2007, when claimant alleges the disclosure of confidential information took place and was then remedied (see Dolgoff Holophase v E.I. du Pont de Nemours & Co., 212 AD2d 661, 662 [2d Dept 1995] [cause of action for disclosure of confidential information in violation of non-disclosure agreement "accrues on the date that the protected information was disclosed"]). Claimant thus had ninety days from August 23 to file and serve a timely claim or notice of intention. That period expired on November 21, 2007.
Claimant contends that his cause of action should accrue "when Claimant discovered the wrong done" (Reply Opposition at 2). A claim accrues upon discovery, however, only in certain limited instances, when such accrual is specifically provided for by statute (see Conner v State of New York, 268 AD2d 706, 707 [3d Dept 2000] [a discovery rule "should not be extended beyond the limited instances provided for by the Legislature"] [citations omitted]). No such provision is applicable here.
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While defendant contends in its motion that it was not served with the claim until November 23, 2007, claimant has presented a signed return receipt from the Attorney General's Office that rebuts that contention. A claim must, however, be both served and filed by the statutory deadline, and the latter did not occur until November 23, after the ninety-day time period had expired. That failure is fatal to Encarnacion's claim (see Bush v State of New York, 60 AD3d 1244, 1245 [3d Dept 2009] ["'the requirements . . . as to the filing of claims must be strictly construed because the question of timeliness of filing is jurisdictional'"] [citations omitted]; Conner v State of New York, 268 AD2d 706, 707 [3rd Dept 2000] [failure to file within limitations period is "a fatal jurisdictional defect"]).
The fact that Encarnacion is incarcerated, and appears to have given his claim to prison officials for mailing on November 19 or 20 - before the time for filing ran - does not render it timely. Although the Supreme Court of United States has construed certain federal rules so that pro se prisoner submissions are deemed "filed at the moment of delivery to prison authorities for forwarding" to the court (Houston v Lack, 487 US 266, 266-67 [1988]), New York courts have declined to adopt a blanket "prisoner mailbox exception" (see Matter of Grant v Senkowski, 95 NY2d 605, 609 [2001] [with respect to CPLR procedures commencing an action or special proceeding]), and have specifically found such an exception inapplicable to the Court of Claims Act (see Philippe v State of New York, 248 AD2d 827, 828 [3d Dept 1998], quoting Espinal v State of New York, 159 Misc 2d 1051, 1054 [Ct Cl 1993] ["claimant's reliance on Houston v Lack . . . is misplaced inasmuch as 'the [New York] statutes governing filing and service of the papers initiating Court of Claims actions do not approximate, much less mirror, the Federal rules considered in Houston . . .'"]). Moreover, as noted above, the applicable regulation states that a claim sent by mail to this Court is filed "upon receipt," not upon mailing (see supra p.3).
New York courts have, however, adopted a narrow limitation on the dismissal of prisoner claims for failure to meet the legal requirements for timely filing and service, estopping the State from obtaining such dismissal where the prisoner's non-compliance was the result of "misfeasance or malfeasance" on the part of correctional personnel or other state officials (see Rivera v State of New York, 5 AD3d 881 [3d Dept 2004] ["[u]nder certain circumstances," omissions or malfeasance by prison officials may "be a proper excuse for failure to timely file . . . warranting estoppel"]; Davidson v State of New York, UID No. 2006-031-019 [Ct Cl, Minarik, J., Apr. 5, 2006], affd 43 AD3d 1311 [4th Dept 2007] [State estopped from seeking dismissal for failure to timely serve and file claim, where prison mail staff refused to have claim notarized, or to be sent to Attorney General by certified mail, return receipt requested]). In this case, however, claimant has failed to present any evidence that a State employee's wrongdoing, or failure to act, caused him to file his claim beyond the applicable ninety-day period. By his own account, Encarnacion gave his claim to the prison mail room on November 19, and it was postmarked November 20. The claim was received by the Attorney General on November 21 and (after Thanksgiving Day, November 22), reached the Court of Claims the following day on which mail was delivered. There is nothing in these facts which proves anything more than that different addressees received a mailing at different times. Much less does it evidence any wrongdoing or other basis for estoppel.
In the absence of such proof, claimant cannot show that the untimely filing of his claim fits within this limited exception (see Tooks v State of New York, 40 AD3d 1347, 1349 [3d Dept 2007] [dismissing claim for failure to serve within statutory deadline, where claimant failed to present evidence of "misfeasance or malfeasance on the part of the Clerk of the Court of Claims which would in any way mislead claimant or would excuse failure to timely serve"]).
In view of the foregoing, defendant's motion no. M-81563 is granted, and claim no. 114526 is dismissed.
SO ORDERED.
August 8, 2012
Albany, New York
David A. Weinstein
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion, Affirmation, and annexed exhibits.
2. Claimant's Reply Opposition to Defendant's Notice of Motion.