Opinion
# 2019-038-570 Claim No. 132900 Motion No. M-94061
07-22-2019
ELIOT LOPEZ v. THE STATE OF NEW YORK
ELIOT LOPEZ, Pro se LETITIA JAMES, Attorney General of the State of New York By: J. Gardner Ryan, Assistant Attorney General
Synopsis
Defendant's pre-answer motion to dismiss for lack of jurisdiction granted in part. Claim for wrongful confinement was sufficiently particularized pursuant to Court of Claims § 11 (b), but claim was untimely served on Attorney General. Motion denied with respect to remaining cause of action for assault and battery, which was not addressed in the motion.
Case information
| UID: | 2019-038-570 |
| Claimant(s): | ELIOT LOPEZ |
| Claimant short name: | LOPEZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132900 |
| Motion number(s): | M-94061 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | ELIOT LOPEZ, Pro se |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: J. Gardner Ryan, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 22, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for assault and battery and wrongful confinement. Defendant makes a pre-answer motion to dismiss the claim on the ground that the Court lacks jurisdiction over the claim because it failed to comply with Court of Claims Act § 11 (b) and is untimely. Claimant opposes the motion.
The claim alleges that claimant was assaulted at his cell by a correction sergeant and a correction officer on July 7, 2017. The claim also alleges that claimant was subsequently confined for 31 days beginning on July 7, 2017 pursuant to a fabricated inmate misbehavior report (IMR). The claim alleges that it accrued on July 7, 2017. On March 14, 2019, claimant served on defendant a notice of intention to file a claim that alleged that claimant was confined for 30 days commencing on July 7, 2017 (see Ryan Affirmation, Exhibit 2).
Defendant argues that claimant's unlawful confinement claim should be dismissed on jurisdictional grounds because it fails to state the date of claimant's release from confinement and thus does not comply with the pleading requirements of Court of Claims Act § 11 (b). Defendant further argues that the Court lacks jurisdiction over the unlawful confinement claim as untimely because (1) neither the notice of intention nor the claim was served within 90 days of its accrual and (2) the claim was served beyond its one-year statute of limitations. Claimant does not address defendant's argument that the unlawful confinement claim fails to comply with Court of Claims Act § 11 (b) but instead argues that the claim is timely because he could not file it until he exhausted the grievance procedure with respect to the IMR upon which his allegedly wrongful confinement was based.
Turning first to defendant's argument that the claim as pleaded is jurisdictionally defective, the Court of Claims Act requires that "[t]he claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and . . . the total sum claimed" (Court of Claims Act § 11 [b] [emphasis added]). The facts set forth in the claim must be 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 201, 207 [2003], quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). "Although absolute exactness is not required, the claim must provide a sufficiently detailed description of the particulars of the claim" and "defendant is not required to ferret out or assemble information that [Court of Claims] section 11 (b) obligates the claimant to allege" (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotation marks and citation omitted]). The failure to comply with the pleading requirements of Court of Claims Act § 11 (b) is a fatal defect in subject matter jurisdiction that requires dismissal of the claim (see Lepkowski, 1 NY3d at 209; see also Kolnacki v State of New York, 8 NY3d 277, 281 [2007], rearg denied 8 NY3d 994 [2007]).
Although the claim states an accrual date of July 7, 2017, an unlawful confinement claim accrues when the claimant is released from that confinement (see Campos v State of New York, 139 AD3d 1276, 1277 [3d Dept 2016]; Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011]; Miranda v State of New York, 42 Misc 3d 1226[A], 2012 NY Slip Op 52505[U], *4 [Ct Cl, Bruening, J., June 11, 2012], affd 113 AD3d 943 [3d Dept 2014]). Here, as set forth in the claim, claimant was issued an IMR on July 7, 2017 following a search in his cell (see Claim No. 132900, ¶¶ 2-3; see also Lopez Response to Notice of Motion and Affirmation, Exhibits A & C [claimant was issued a contraband report and Tier II IMR]). The claim further alleges that claimant "served 31 days confined" in keeplock status (Claim No. 132900, ¶ 3). Thus, notwithstanding that the claim alleges that it accrued on July 7, 2017 (see id. at ¶ 4), the date that claimant's confinement began, it is apparent from the claim that the cause of action for wrongful confinement accrued 31 days later, on August 7, 2017, when claimant was released from that confinement. Notwithstanding its erroneous accrual date, the claim is sufficiently particularized to enable defendant to investigate and ascertain its liability. Therefore, the unlawful confinement claim will not be dismissed due to a failure to comply with Court of Claims Act § 11 (b).
Claimant alleged in his notice of intention that he was confined to his cell for 30 days, with loss of commissary and phone privileges, limited visiting privileges, and restricted access to recreational, religious, and rehabilitative activities (see Ryan Affirmation, Exhibit 2, ¶ 6).
Turning next to defendant's argument that the unlawful confinement claim is untimely, Court of Claims Act §§ 10 (3-b) and 11 (a) (i) require that a notice of intention to file a claim or the claim itself be served on the Attorney General within 90 days after the accrual of the claim. A timely served notice of intention will extend the time within which to serve and file the claim to one year after the date of accrual of a claim sounding in intentional tort (see Court of Claims Act § 10 [3-b]). It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional in nature, and that the failure to timely serve the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]). A claim for wrongful confinement typically sounds in intentional tort (see Manuel v State of New York, UID No. 2018-038-561 [Ct Cl, DeBow, J., June 21, 2018]; Nanton v State of New York, UID No. 2017-038-578 [Ct Cl, DeBow, J., Oct. 12, 2017]), and, as discussed above, accrues upon release from confinement (see Campos, 139 AD3d at 1277; Davis, 89 AD3d at 1287).
As noted above, the claim accrued on August 7, 2017 when claimant was released from confinement, and defendant has established that the notice of intention was served on the Attorney General on March 11, 2019 (see Ryan Affirmation, Exhibit 2), which is far more than 90 days after the accrual date of August 7, 2017. Thus, claimant's time within which to serve and file the claim was not extended beyond 90 days, and the unlawful confinement claim, which was served on April 8, 2019 (see id., ¶ 5; id., Exhibit 1), is untimely. Even if the notice of intention had been timely served and extended the time for filing and service to one year, claimant served and filed the claim on April 1, 2019, which was more than one year after the expiration of the one year statute of limitations (see CPLR 215 [3]), and thus the claim must be dismissed (see Court of Claims Act § 10 [3-b]; Nanton, UID No. 2017-038-578, supra).
Claimant appears to take issue with the August 7, 2017 accrual date, arguing that the IMR "was actually dismissed on 8/16/17, well beyond the mention[ed] 30 days" (Lopez Response to Notice of Motion and Affirmation, ¶ 5; see id., Exhibits A & C [noting that the IMR was dismissed due to a procedural error on August 16, 2017]). As discussed above, however, the proper accrual date for this wrongful confinement claim is the date claimant was released from that confinement and not the date the IMR was dismissed. --------
Claimant's argument that he was required to exhaust his administrative remedies before filing this claim is unavailing. Claimant states that he filed two grievances with respect to the IMR that was the basis of his allegedly wrongful confinement, and he did not receive responses to those grievances until February 28, 2019 and March 14, 2009 [sic] (see Lopez Response to Notice of Motion and Affirmation, ¶¶ 3-4, Exhibits A & C). Nevertheless, claimant's wrongful confinement cause of action accrued on the date he was released from keeplock because it was on that date that the damages arising from the alleged wrongful confinement were "reasonably ascertainable" (Davis, 89 AD3d at 1287; see Perez v State of New York, UID No. 2018-038-545 [Ct Cl, DeBow, J., Apr. 27, 2018]; Cooper v State of New York, UID No. 2013-038-563 [Ct Cl, DeBow, J., Oct. 7, 2013]). To the extent that claimant argues that he sustained a "continuing injury" that tolled the time limitations within the Court of Claims Act (Lopez Response to Notice of Motion and Affirmation, ¶ 2), it is inapplicable here. While the "continuing violation doctrine has . . . been applied to toll the running of the time limitations upon suit contained in the Court of Claims Act" (Clauberg v State of New York, 19 Misc 3d 942, 949 [Ct Cl 2008]), the doctrine is applicable only when "predicated on continuing unlawful actsand not on the continuous effects of earlier unlawful conduct" (Selkirk v State of New York, 249 AD2d 818, 819 [3d Dept 1998] [emphasis added]; see Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687, 688 [3d Dept 2000]).
Finally, inasmuch as defendant's motion to dismiss has not addressed claimant's assault and battery claim, those causes of action survive this motion to dismiss.
Accordingly, it is
ORDERED, that defendant's motion number M-94061 is GRANTED IN PART, and the cause of action for unlawful confinement is DISMISSED; and it is further
ORDERED, that defendant's motion number M-94061 is DENIED in all other respects; and it is further
ORDERED, that with respect to the remaining assault and battery causes of action, defendant shall have thirty (30) days from the filing of this decision and order to file and serve an answer to the claim.
July 22, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers Considered: 1) Claim number 132900, filed April 8, 2019; 2) Notice of Motion, dated May 9, 2019; 3) Affirmation of J. Gardner Ryan, AAG, dated May 8, 2019, with Exhibits 1 and 2; 4) Affidavit of Service of Francine Broughton, sworn to May 14, 2019; 5) Response to Notice of Motion and Affirmation, dated May 22, 2019, with Exhibits A-C;