Opinion
# 2015-015-112 Claim No. 126580 Motion No. M-87369 Motion No. M-87489
12-21-2015
VERNON A. JONES v. THE STATE OF NEW YORK
Vernon A. Jones, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esquire Assistant Attorney General
Synopsis
Claim was dismissed for failing to sufficiently allege facts from which the date of accrual could be discerned.
Case information
| UID: | 2015-015-112 |
| Claimant(s): | VERNON A. JONES |
| Claimant short name: | JONES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126580 |
| Motion number(s): | M-87369, M-87489 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Vernon A. Jones, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 21, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves for an Order dismissing the claim pursuant to CPLR 3211 (a) (2) and (7) on the ground it fails to comply with the pleading requirements set forth in Court of Claims Act § 11 (b) (Motion No. M-87369). The claimant, proceeding pro se, separately moves to amend his claim (Motion No. M-87489).
Claimant, an inmate, seeks damages for wrongful confinement arising from a tier II disciplinary proceeding. The claim alleges the following:
"Claimant prevailed on a Article 78 proceeding against Defendant for due process violations in Tier II Disciplinary proceeding and now Claimant seeks Consequential Damages of Back-Pay, $75.00 a day for the Unlawful confinement and all filing fee's" (defendant's Exhibit A, p. 1 [uncorrected]).
The claim alleges accrual occurred at Great Meadow Correctional Facility on June 11, 2015 (id. at p.2).
In support of its dismissal motion, defendant contends that the claim fails to meet the pleading requirements of Court of Claims Act § 11 (b) because it does not adequately set forth the nature of the claim or sufficient facts from which a date of accrual may be discerned.
In support of his motion to amend the claim, claimant states that the claim accrued on June 11, 2015 because it was on that date that the disciplinary determination was annulled and expunged from his institutional record. Claimant also indicates that the hearing commenced on October 16, 2013 "when a disciplinary disposition was imposed on claimant in violation of N.Y.C.R.R. Title 7, Chapter V, § 252.4, confining claimant to his cell for 30 days" (claimant's unsworn "affidavit", ¶ 7). It appears, according to the claimant, that the hearing determination was annulled because the hearing was held without allowing the him to retrieve his hearing aids and he was unable to "fully comprehend" the proceeding (id. at ¶ 13).
The State's waiver of immunity from suit is contingent upon compliance with the specific conditions to suit set forth in article II of the Court of Claims Act, which includes the pleading requirements set forth in § 11 (b) (Court of Claims Act § 8; Lepkowski v State of New York, 1 NY3d 201 [2003]; Davis v State of New York, 64 AD3d 1197 [4th Dept 2009], lv denied 66 AD3d 1504 [4th Dept 2009], lv denied 13 NY3d 717 [2010]). "Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]).
Section 11(b) of the Court of Claims Act requires that a claim state "the time when and the place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and . . . the total sum claimed." "Failure to abide by these pleading requirements constitutes a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result" (Sommer v State of New York, 131 AD3d 757 [3d Dept 2015], quoting Morra v State of New York, 107 AD3d 1115, 1115 [3d Dept 2013]; see also Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept 2010], lv dismissed 15 NY3d 911 [2010]; Nasir v State of New York, 41 AD3d 677 [2d Dept 2007]; Mujica v State of New York, 24 AD3d 898 [3d Dept 2005], lv denied 7 NY3d 701 [2006]). The guiding principle in determining the sufficiency of a claim is whether it is sufficiently definite " 'to enable the State. . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances' . . ." (Lepkowski v State of New York, 1 NY3d at 207, quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). While pleading with "absolute exactness" is not required, a cause of action must be pled with sufficient specificity so as not to mislead, deceive or prejudice the rights of the State (Heisler v State of New York, 78 AD2d at 767). Here, defendant contends that the allegations in the claim are insufficiently specific to meet this standard because no facts are alleged which would enable the defendant to determine the date the claim accrued or otherwise determine its liability. The Court agrees.
While defendant also contends that claimant failed to sufficiently allege the nature of the claim, in making this argument defense counsel quoted only part of the claim, omitting that part which alleged that claimant seeks "$75.00 a day for the Unlawful confinement and all filing fee's [sic]" (see affirmation of Paul F. Cagino dated September 14, 2015, ¶ 4, and defendant's Exhibit A, claim, p. 1).
The allegations in the claim are entirely conclusory and fail to set forth sufficient facts to enable the defendant to determine the date the claim accrued. A cause of action accrues when damages are reasonably ascertainable which, in a claim for wrongful confinement, is the date the confinement terminates (Burks v State of New York, 119 AD3d 1302 [3d Dept 2014]; Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011]; Conner v State of New York, 268 AD2d 706 [3d Dept 2000]). Based on the allegations in the claimant's affidavit submitted in support of his motion, his wrongful confinement claim accrued in November 2013 when he was released from disciplinary confinement, not on the date the disciplinary determination was annulled (see Davis, 89 AD3d 1287). As a result, the claim filed almost two years after the date it accrued is time-barred.
Nor is late claim relief available under Court of Claims Act § 10 (6) as the statute of limitations applicable to intentional tort claims has expired (CPLR 215 [3]; Burks, 119 AD3d at 1303).
The claimant's motion seeking leave to amend the claim must be denied as it is well settled that a jurisdictionally defective pleading may not be cured by amendment (Dinerman v NYS Lottery, 69 AD3d 1145 [3d Dept 2010], lv dismissed 15 NY3d 911 [2010]; Hogan v State of New York, 59 AD3d 754, 755 [3d Dept 2009]; Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983 [3d Dept 1986]; Grande v State of New York, 160 Misc 2d 383 [Ct Cl 1994]). Accordingly, claimant's motion must be denied.
Based on the foregoing, defendant's motion to dismiss the claim is granted and the claimant's motion for leave to amend its claim is denied.
December 21, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers: Motion No. M-87369
1. Notice of motion dated September 14, 2015; 2. Affirmation of Paul F. Cagino dated September 14, 2015 with exhibit. Motion No. M-87489 1. Notice of motion dated September 24, 2015; 2. Unsworn Affidavit of Vernon A. Jones dated September 24, 2015 with exhibits A-B; 3. Memorandum of Law of Vernon A. Jones dated September 24, 2015; 4. Affirmation of Paul F. Cagino dated November 2, 2015 with exhibit; 5. Reply affirmation of Vernon Jones dated November 4, 2015 with exhibits A-C.