Opinion
# 2015-010-025 Claim No. 125053 Motion No. M-86600 Motion No. M-86644
05-27-2015
RUSH v. NEW YORK STATE DEPT. CORRECTION AND COMMUNITY SUPERVISION
BASHEEN RUSH Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Rachel Zaffrann, Assistant Attorney General
Synopsis
Defendant motion to dismiss granted, the notice of intention was not timely served within 90 days of the date of accrual.
Case information
| UID: | 2015-010-025 |
| Claimant(s): | BASHEEN RUSH |
| Claimant short name: | RUSH |
| Footnote (claimant name) : | |
| Defendant(s): | NEW YORK STATE DEPT. CORRECTION AND COMMUNITY SUPERVISION |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125053 |
| Motion number(s): | M-86600, M-86644 |
| Cross-motion number(s): | |
| Judge: | Terry Jane Ruderman |
| Claimant's attorney: | BASHEEN RUSH Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Rachel Zaffrann, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 27, 2015 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers numbered 1-3 were read and considered by the Court on defendant's motion to dismiss (M-86644) and claimant's motion for default judgment (M-86600):
Claimant submitted a reply to defendant's motion to dismiss with a postmark after the return date. Accordingly, claimant's reply was not timely and therefore was not considered by the Court.
Notice of Motion, Attorney's Supporting Affirmation and Exhibits (M-86644).....1
Notice of Motion, Supporting Affidavit and Exhibits (M-86600)............................2
Defendant's Affirmation in Opposition....................................................................3
Defendant moves to dismiss Claim No. 125053 on jurisdictional grounds. The claimant alleges that, during claimant's incarceration at Sing Sing Correctional Facility, on October 27, 2013 he was wrongfully confined to his cell for 45 days until December 11, 2013. The claim further alleges that the matter was administratively reversed on August 11, 2014 and that a Notice of Intention to File a Claim was served on August 29, 2014. A claim was filed with the Court on September 29, 2014 and on March 26, 2015, claimant served the New York State Attorney General's Office with the claim by regular mail (Defendant's Ex. B).
It is well settled that a cause of action for wrongful confinement accrues on the date when the confinement terminated (see Davis v State of New York, 89 AD3d 1287 [3d Dept 2011] [wrongful confinement claim accrued upon release from keeplock]; Johnson v State of New York, 95 AD3d 1455 [3d Dept 2012] [wrongful confinement claim accrued upon release from special housing unit]) and it is undisputed that claimant was released from keeplock on December 11, 2013. The Court of Claims Act mandates that either a Notice of Intention to File a Claim must be served or a claim must be served and filed within 90 days of accrual and this statutory requirement is jurisdictional (see Kolnacki v State of New York, 8 NY3d 277, 281 [2007] ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]; Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]). Here, the notice of intention was not timely served within 90 days of the date of accrual, December 11, 2013. Therefore, because the notice of intention was a nullity, the claim was not timely.
Additionally, the claim was served by regular mail, which is not an authorized manner of service under Court of Claims Act § 11 [a] [I] (see Brown v State of New York, 114 AD3d 632 [2d Dept 2014] [service of claim by ordinary mail insufficient to acquire jurisdiction over the State]). A failure to comply with any of the service provisions is a jurisdictional defect compelling the dismissal of the claim. Thus, the wrongful confinement claim was not timely commenced and warrants dismissal.
Accordingly, defendant's motion to dismiss Claim No. 125053 is hereby GRANTED.
Claimant's motion for a default judgment is DENIED as moot and, in any event, is without merit in light of defendant's pre-answer motion (M-86644).
May 27, 2015
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims