Opinion
# 2013-040-016 Claim No. 121936 Motion No. M-82721
02-28-2013
DAVID KINLOCK v. THE STATE OF NEW YORK
Synopsis
State's motion to dismiss denied.
Case information
UID: 2013-040-016 Claimant(s): DAVID KINLOCK Claimant short name: KINLOCK Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 121936 Motion number(s): M-82721 Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY Claimant's attorney: David Kinlock, Pro Se ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG Third-party defendant's attorney: Signature date: February 28, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
For the reasons set forth below, Defendant's pre-Answer motion to dismiss the Claim as barred by the Statute of Limitations set forth in CPLR 215(1) is denied. The State also seeks dismissal based upon lack of jurisdiction for failure to comply with the service requirements of Court of Claims Act §§ 10 and 11, and that motion also is denied.
This pro se Claim was filed with the Clerk of the Court on October 26, 2012. The Claim alleges that Claimant was illegally confined to prison as a result of Defendant's failure to properly credit him with 163 days of pre-sentence time served in various county jails as required by Penal Law §70.30(3).
The State seeks dismissal of the Claim on the basis that the one-year statute of limitations period applicable to this type of action (CPLR 215[1]) expired prior to the date that Claimant served and filed his Claim. Defendant relies upon the Appellate Division, Third Department decision in Jackson v Buffardi (66 AD3d 1297 [3d Dept 2009], lv denied 14 NY3d 710 [2010]).Jackson involved a plaintiff who alleged that the State illegally confined him for an additional nine months due to a county sheriff's failure to report the time spent in county jail. The Court held that the cause of action did not accrue upon the inmate's release from prison, but upon the sheriff's acts or omissions. In Jackson, the Court held that the cause of action accrued on the date the plaintiff was sent to State prison. The Court further stated that, even if the claim did not arise until the plaintiff suffered an injury, it would have accrued when he remained imprisoned beyond his proper release date.
CPLR 215(1) applies to actions against a sheriff, coroner or constable for an action performed in such officer's official capacity. Here, Claimant is not asserting that a county sheriff improperly reported the time he spent in a county jail. Claimant's Claim asserts that the State failed to properly credit him with the time he was incarcerated in county jails. The Court, therefore, concludes that CPLR 215(1) is not applicable to the present Claim and that portion of the State's motion to dismiss on the basis that the Statute of Limitations expired prior to commencement of this action is denied.
Defendant also seeks dismissal of the Claim based upon Claimant's failure to properly serve the Claim upon the Attorney General in accordance with Court of Claims Act § 11(a). As pertinent to the instant matter, Court of Claims Act § 11(a)(i) provides that the Claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the time period provided in Court of Claims Act § 10(3).
In his affirmation submitted in support of the motion, Defense counsel asserts that, on October 26, 2012, Claimant served the Claim upon the Attorney General by regular mail (Affirmation of Michael T. Krenrich, Esq., ¶ 10 and Exhibit A attached thereto). In reviewing Exhibit A, which includes a photocopy of the envelope in which the Claim was purportedly mailed, the Court notes that there is no certified mail return receipt sticker affixed to the envelope. However, while the envelope indicates that it was "Received [by] the NYS Office of the Attorney General, Claims Bureau," it does not include the date it was received. In opposition to the motion, Claimant asserts that he properly served the Claim by certified mail, return receipt requested on October 26, 2012 and attached a copy of a certified mail return receipt (Kinlock Affidavit in Opposition to State's Motion, ¶ 8 and Exhibit A attached thereto). In reviewing Claimant's Exhibit A, the Court notes that the photocopy includes a notation that the return receipt is for a Notice of Intention against the State for jail time credit.
In his Affirmation in Reply, Defense counsel asserts that, on October, 26, 2012, Claimant served a Notice of Intention to File a Claim upon the Attorney General (Reply Affirmation of Michael T. Krenrich, Esq., ¶ 4, and Exhibit A attached thereto). In reviewing Exhibit A, the Court notes that the envelope contains a certified mail sticker and that the article number on the sticker is 7010 3090 0000 8281 2911. This is the same article number contained on the copy of the certified mail return receipt card that Claimant submitted as Exhibit A attached to his affidavit. Defense counsel further asserts that, on the same date, Claimant served the Claim upon the Attorney General by regular mail only (id., ¶ 5, and Exhibit B attached thereto). In reviewing a photocopy of the envelope in which the Claim was purportedly mailed, the Court notes that there is no certified mail or return receipt sticker affixed to the envelope. However, as with Exhibit A attached to the State's motion, while the envelope indicates that it was "Received [by] the NYS Office of the Attorney General, Claims Bureau," it includes neither the date it was received, nor the amount of postage paid.
By letter dated February 5, 2013, Defense counsel advised Claimant and the Court that he realized that the copy of the envelope attached to his motion as Exhibit A and to his Reply Affirmation as Exhibit B "did not depict those features of the envelope that appeared in red ink." This included the postmark and the portion of the date stamp which reflects the date the Claim was received by the Attorney General. Attached to the letter is another copy of the envelope in which the Claim was purportedly mailed. The Court notes that the envelope was received by the Attorney General on October 26, 2012 and postage was $1.10.
While this motion was pending, Claimant served the Defendant with a copy of the Claim by certified mail, return receipt requested on January 2, 2013 (see copy of certified mail return receipt card, filed with the Clerk of the Court on January, 18, 2013). In his February 5, 2013 letter, Mr. Krenrich states that a duplicate copy of Claim No. 121936 was received by certified mail, return receipt requested by the Attorney General on January 2, 2013.
As Claimant has established and Defendant has confirmed that the Claim was served on Defendant by certified mail, return receipt requested, the State's motion to dismiss on the basis that the Claim was not properly served is denied.
Albany, New York
February 28, 2013
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's motion for dismissal:
Papers Numbered
Notice of Motion, Affirmation in Support
& Exhibit attached 1
Claimant's affidavit & Exhibit attached 2
Defendant's Reply Affirmation &
Exhibits attached 3
Claimant's Reply & Exhibits attached 4
Claimant's proof of service 5
Letter from Defense Counsel 6
Filed Papers: Claim