Opinion
# 2015-015-039 Claim No. 122878 Motion No. M-85824 Cross-Motion No. CM-85908
01-20-2015
KAHLEIF GREEN v. THE STATE OF NEW YORK
Kahleif Green, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Thomas R. Monjeau, Esquire Assistant Attorney General
Synopsis
Claim was dismissed as untimely.
Case information
UID: | 2015-015-039 |
Claimant(s): | KAHLEIF GREEN |
Claimant short name: | GREEN |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 122878 |
Motion number(s): | M-85824 |
Cross-motion number(s): | CM-85908 |
Judge: | FRANCIS T. COLLINS |
Claimant's attorney: | Kahleif Green, Pro Se |
Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Thomas R. Monjeau, Esquire Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | January 20, 2015 |
City: | Saratoga Springs |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Claimant, a pro se inmate, moves to amend both his notice of intention and claim. Defendant cross-moves to dismiss the claim pursuant to CPLR 3211 (a) (2), (7) and (8) on the ground it was untimely served.
Claimant seeks damages for the alleged failure of prison officials to timely release him from punitive confinement. He alleges that following the issuance of a misbehavior report and, presumably, a hearing, a 90-day period of disciplinary keeplock confinement was imposed. Claimant alleges that although the period of keeplock confinement should have expired on November 15, 2012, he was not released from confinement until February 15, 2013. Claimant alleges further that although he was issued additional misbehavior reports for failing to submit to a tuberculosis test during the period of his keeplock confinement, no additional keeplock time was imposed.
Claimant submitted to the test on January 26, 2013, which was negative.
Defendant contends in support of its cross motion that the notice of intention was served by ordinary mail rather than personal service or certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (i). As a result, defendant asserts that the claim, which was properly served on June 21, 2013 by certified mail, return receipt requested, is untimely. Defendant raised as affirmative defenses in the answer both that the notice of intention was served by ordinary mail (defendant's Exhibit C, ¶ Sixth) and that the claim served on June 21, 2013 was untimely under both Court of Claims Act § 10 (3-b) (id. at ¶ Fifth) and § 10 (3) (id. at ¶ Seventh). Inasmuch as defendant's cross motion is dispositive, it will be addressed first.
A claim or notice of intention to file a claim must be served within 90 days following the date the claim accrues pursuant to both Court of Claims Act § 10 (3-b) applicable to intentional torts and § 10 (3) applicable to unintentional torts. The difference between these two sections lies in the period of time in which to serve and file a claim after a notice of intention is properly served. Whereas a properly served notice of intention extends the time to serve and file an unintentional tort claim until two years following accrual of the claim (Court of Claims Act § 10 [3]), a properly served notice of intention to file an intentional tort claim extends the time to serve and file a claim for only one year following accrual (Court of Claims Act § 10 [3-b]). To be effective, however, a notice of intention must be served personally or by certified mail, return receipt requested, pursuant to Court of Claims Act § 11 (a) (i). Here, it is undisputed that the notice of intention was improperly served by ordinary mail and the law is settled that "alternative mailings which do not equate to certified mail, return receipt requested, are inadequate and do not comply with Court of Claims Act § 11 (a)" (Femminella v State of New York, 71 AD3d 1319, 1320 [3d Dept 2010] [citation and internal quotation marks omitted]; see also Miranda v State of New York, 113 AD3d 943 [3d Dept 2014]; Filozof v State of New York, 45 AD3d 1405 [4th Dept 2007]). The improperly served notice of intention to file a claim did not, therefore, extend the claimant's time to serve and file his claim. A claim for wrongful confinement accrues on the date the wrongful confinement ends, the date on which damages become reasonably ascertainable (Johnson v State of New York, 95 AD3d 1455, 1456 [3d Dept 2012]; Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011]). Claimant alleges that he was released from keeplock confinement on February 15, 2013. The instant claim, having been served and filed more than 90 days after its accrual is, therefore, untimely (Femminella v State of New York, supra). To the extent the claim may be read to include causes of action for negligence or constitutional tort, the result is the same (Court of Claims Act § 10 [3]; Anderson v State of New York, UID No. 2012-015-306 [Ct Cl, Collins, J. March 16, 2012, n 2). Claimant's contention that the claim accrued when he received a copy of the inmate grievance investigation report on March 25, 2013 is incorrect, as there is no requirement that an inmate exhaust his or her administrative remedies prior to commencing a tort action in the Court of Claims (compare Blanche v State of New York, 17 AD3d 1069 [4th Dept 2005]). Defendant established that neither a notice of intention nor a claim were properly served within the statutory period to do so, and preserved the appropriate defenses in its answer (defendant's Exhibit C). As a result, the claim is time-barred.
Defendant's cross motion to dismiss the claim is granted and the claim is dismissed. Claimant's motion is denied as academic.
January 20, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Notice of motion dated October 15, 2014;
Affidavit of Kahleif Green sworn to October 15, 2014 with exhibits;
Notice of cross-motion dated November 7, 2014;
Affirmation of Thomas R. Monjeau dated November 7, 2014 with exhibits;
Unsworn answering "affidavit" of Kahleif Green filed November 21, 2014 with exhibits;
Unsworn supplemental "affidavit" of Kahleif Green filed December 8, 2014 with exhibits.