Opinion
# 2018-054-068 Motion No. M-92219
06-20-2018
ALBERTO MURILLO v. THE STATE OF NEW YORK
ALBERTO MURILLO Pro Se HON. BARBARA D. UNDERWOOD Attorney General for the State of New York By: Michael T. Krenrich, Assistant Attorney General
Synopsis
Late claim application denied-wrongful confinement claim not brought within one-year statute of limitations.
Case information
| UID: | 2018-054-068 |
| Claimant(s): | ALBERTO MURILLO |
| Claimant short name: | MURILLO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-92219 |
| Cross-motion number(s): | |
| Judge: | WALTER RIVERA |
| Claimant's attorney: | ALBERTO MURILLO Pro Se |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD Attorney General for the State of New York By: Michael T. Krenrich, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 20, 2018 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers numbered 1-2 were read and considered by the Court on movant's application to serve and file a late claim:
Notice of Motion, Movant's Affidavit in Support and Exhibit.................................1
Defendant's Affirmation in Opposition and Exhibit.................................................2
Movant submits this application for leave to serve and file a late claim. The proposed claim alleges that, during movant's incarceration at Eastern NY Correctional Facility, he was issued a misbehavior report and wrongfully confined in the special housing unit (SHU) after a guilty determination was rendered at a disciplinary hearing. Upon reversal of the hearing officer's determination, movant was released from the SHU. While the proposed claim does not state movant's date of release from the SHU, the proposed claim asserts that movant was issued a misbehavior report on September 28, 2016, and wrongfully confined for 78 days. Accordingly, the date of release from the SHU would be December 15, 2016.
The Court of Claims Act § 10 (6) provides that a late claim application must be brought "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." The failure to bring a late claim application before the expiration of the relevant statute of limitations precludes the Court from considering the application (see Roberts v City Univ. of N.Y., 41 AD3d 825, 826 [2d Dept 2007]; Campos v State of New York, 139 AD3d 1276, 1278 [3d Dept 2016]). As such, the failure to file a late claim application within the applicable time period "creates a jurisdictional defect and the court is without discretionary power to grant nunc pro tunc relief" (Bergmann v State of New York, 281 AD2d 731, 733-734 [3d Dept 2001], quoting Byrne v State of New York, 104 AD2d 782, 783 [2d Dept 1984]; see also Roberts, 41 AD3d at 826).
Pursuant to CPLR 215 (3), causes of action for false arrest and imprisonment are subject to a one-year statute of limitations (see Maendel v State of New York, 178 Misc 2d 297, 299 [Ct Cl 1998]), and accrual commences on the date of the claimant's release from confinement (Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011]). As movant's cause of action for wrongful confinement accrued on December 15, 2016, the instant late claim application was not brought within the one-year statute of limitations pursuant to CPLR 215 (3). Consequently, this Court is without jurisdiction to address movant's late claim application.
Accordingly, movant's application is DENIED.
June 20, 2018
White Plains, New York
WALTER RIVERA
Judge of the Court of Claims