Opinion
# 2021-053-520 Claim No. 135001 Motion No. M-96344
04-08-2021
JOSEPH C. PIERCE v. THE STATE OF NEW YORK
ROBERT M. GOLDSTEIN, ESQ. HON. LETITIA JAMES New York State Attorney General BY: Michael T. Feeley, Esq. Assistant Attorney General
Synopsis
The State's motion to dismiss for lack of jurisdiction is granted. Claimant served a notice of intention within ninety days but failed to serve the claim alleging an assault within one year.
Case information
| UID: | 2021-053-520 |
| Claimant(s): | JOSEPH C. PIERCE |
| Claimant short name: | PIERCE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 135001 |
| Motion number(s): | M-96344 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | ROBERT M. GOLDSTEIN, ESQ. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Michael T. Feeley, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 8, 2021 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Joseph C. Pierce alleges in claim no. 135001 that he was assaulted on July 17, 2018, while incarcerated at Collins Correctional Facility (Collins). Defendant moves by Motion No. M-96344 to dismiss the claim, arguing that the Court does not have personal or subject matter jurisdiction. These defenses were raised with particularity in defendant's answer (Exhibit B). Claimant failed to respond or otherwise oppose the motion.
On August 10, 2018, claimant served upon the Office of the Attorney General (OAG) a notice of intention to file a claim (Exhibit C). In his notice of intention, claimant alleges that on July 17, 2018, he was "intentionally and deliberately placed in a situation where he was subjected to, and did receive, serious physical injury, occasioned by specific Correction Officers at the Collins Correctional Facility." Claimant further alleges in his notice of intention that Sgt. Filighere wrongly accused him of being a snitch and that he was "attacked, punched, beaten, kicked, and pummeled" after being "intentionally and deliberately" placed in a cell with a gang member, and that he sustained personal injuries "as a result of the beating, deliberately arranged and orchestrated by Sgt. Filighere." (Exhibit C).
On July 6, 2020, claimant served a claim on the OAG (Exhibit A). As with the notice of intention, claimant alleges in the claim that he was "deliberately and intentionally" placed in a cell with a gang member on July 17, 2018, and was immediately "attacked, beaten, punched, kicked and pummeled." In its answer, defendant alleges that the claim was untimely served and filed, depriving the Court of jurisdiction (Exhibit B).
By way of background, claimant refers in paragraphs 4-6 of his claim to an assault by Correction Officers which allegedly occurred on December 12, 2017 at Greene Correctional Facility. This assault was not mentioned in the notice of intention and would be untimely if considered a cause of action in the present claim as the claim was served more than ninety days after accrual of this alleged assault. Moreover, the alleged assault of December 12, 2017 is the subject of separate claim no. 134131 pending before another Judge of the Court of Claims. --------
In the notice of intention and in the claim, the actions of the State's Correction Officers were described as being deliberate and intentional and that the assault of July 17, 2018 was deliberately arranged and orchestrated by a Correction Officer. No where in the notice of intention or in the claim are the actions of the Correction Officers described as being negligent or is the word negligence used in any context. Where, as here, the allegations in the notice of intention and in the claim, no matter how read, cannot be construed as alleging a negligence cause of action, the statute of limitations which applies to intentional torts, including assaults, must be applied (see Trott v Merit Dept Store, 106 AD2d 158 [1st Dept 1985]; Masters v Becker, 22 AD2d 118 [2d Dept 1964]).
Pursuant to Court of Claims Act § 10 (3-b), a claim to recover damages for injuries caused by an intentional tort of an officer or employee of the State must be filed and served upon the attorney general within ninety days after the accrual of the claim, unless the claimant shall, within the same ninety day period, serve upon the attorney general a written notice of intention to file a claim, in which event the claim must be filed and served upon the attorney general within one year after the accrual of the claim. The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to comply with the filing and service requirements, divests the Court of jurisdiction, requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]).
Here, claimant served upon the OAG a notice of intention on August 10, 2018, within ninety days of the July 17, 2018 assault. As a result, claimant had one year from July 17, 2018, or by July 17, 2019, within which to file and serve a claim. The claim was served upon the OAG on July 6, 2020, almost two years after the assault. As the claim was untimely served, the Court is divested of jurisdiction and the claim must be dismissed (Torres v State of New York, 107 AD3d 1471 [4th Dept 2013]).
Accordingly, defendant's motion no. M-96344 is granted and claim no. 135001 is dismissed.
April 8, 2021
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion and affidavit of Assistant Attorney General Michael T. Feeley, Esq. sworn to December 3, 2020, with annexed Exhibits A-C.