Opinion
# 2015-049-029 Claim No. 125495 Motion No. M-86316
05-20-2015
RANDY GUTIERREZ v. THE STATE OF NEW YORK
Randy Gutierrez, Pro Se Eric T. Schneiderman, New York State Attorney General By: Joseph L. Paterno, Assistant Attorney General
Synopsis
The Court granted defendant's pre-answer motion to dismiss inmate's claim as untimely.
Case information
| UID: | 2015-049-029 |
| Claimant(s): | RANDY GUTIERREZ |
| Claimant short name: | GUTIERREZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125495 |
| Motion number(s): | M-86316 |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Randy Gutierrez, Pro Se |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Joseph L. Paterno, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 20, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant pro se Randy Gutierrez filed a claim in this Court on January 7, 2015. The allegations of the claim are difficult to understand, as they are spread across the pleadings and several attachments, but they appear to be along the lines of the following: In December 2014, while incarcerated at Green Haven Correctional Facility, Gutierrez met another inmate named Carl Wells, who showed him an affidavit. That affidavit bears the symbol of New York State Supreme Court, and is dated September 27, 2011. It stated that the Court would not be able to meet transcription requests for a particular court reporter, since the reporter had not been at work since March 17, 2011. The affidavit is identical, according to Gutierrez, to one he had received from his appellate counsel. Gutierrez avers that he has "just discovered" that the reporter is a drug addict, and the court reporters' office "intentionally issued 'invalid' affidavits."
The claim lists accrual dates of December 14, 2014 and September 27, 2011. It appears to sound in some kind of ministerial negligence.
Defendant State of New York now submits a pre-answer motion to dismiss the claim (Motion No. M-86316), on the ground that it is untimely, and that court reporters are immune from suit. Gutierrez has presented papers in opposition, in which he asserts that his claim accrued on the date he received Wells' affidavit, apparently because it was then that he realized the nature of the State's wrongdoing (see Gutierrez Aff. ¶ 4 ["once the claimant reviewed Mr Well's [sic] affidavit . . . on December 14, 2014 . . . the cause of action and the 'clock' started ticking, and/or statute limitations, time etc., started"]).
An action for negligent or intentional tort in the Court of Claims must be filed and served within 90 days of accrual (Court of Claims Act § 10[3] & [3-b]), while a claim that does not fall within one of the defined time periods for filing and service set forth in the Court of Claims Act must be commenced within six months of accrual (Court of Claims Act § 10[4]). A claimant's failure to meet the requirements regarding the timely initiation of claims in this Court creates a jurisdictional defect to bringing suit, requiring dismissal (see Voulgarelis v State of New York, 211 AD2d 675 [2d Dept 1995]; Mallory v State of New York, 196 AD2d 925 [3d Dept 1993]), so long as defendant raises the defect in the responsive pleadings, or as is the case here, in a pre-answer motion (Court of Claims Act § 11[c]).
As a general rule, a cause of action accrues when an injury is sustained. It is that date, "rather than the wrongful act of defendant or discovery of the injury by plaintiff," which is relevant for accrual purposes (see Kronos, Inc. v AVX Corp., 81 NY2d 90, 94 [1993]).
It is difficult to pinpoint the date of injury for purposes of this case, since it is hard to discern what sort of injury Gutierrez claims to have sustained. The particular actions or omissions of the court reporter that he challenges in this case, however, took place at latest in 2011 - indeed, he sets one of the accrual dates in his claim as September 27, 2011, and mentions no action or omission by the State or its employees thereafter. Since his claim was not filed until January 7, 2015, it is untimely.
Gutierrez argues in his response to the dismissal motion that the proper accrual date should be December 14, 2014, when he first saw the Wells affidavit. But as noted above, the date an injury is discovered (if that is what occurred in December 2014) is not relevant for accrual purposes (see Bond v Progressive Ins. Co., 82 AD3d 1318, 1320-1321 [3d Dept 2011] ["when damage is an essential element of a tort, the claim does not accrue at the time of the defendant's wrongful act or the plaintiff's discovery of the injury, but when harm is sustained"]). Nothing in claimant's pleading indicates that he sustained any injury within 90 days or within the outside time period of six months of the filing of the claim.
In light of the foregoing, motion no. M-86316 is granted, and the claim is dismissed as untimely. I need not, therefore, address defendant's alternate argument for dismissal.
May 20, 2015
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims Papers considered: 1. Defendant's Notice of Motion, Affirmation in Support and exhibit attached thereto. 2. Claimant's "Affidavit in Response to the Defendant's Affirmation for an Order to Dismiss Claim."