Opinion
# 2011-040-076 Claim No. 120133 Motion No. M-80318 Cross-Motion No. CM-80439
12-15-2011
SANTIAGO v. STATE OF NEW YORK
Synopsis
State's motion to dismiss claim as untimely served is granted (CCA §§ 10 & 11).
Cross-motion to late file pursuant to CCA § 10(6) denied for lack of appearance of merit. Case information
UID: 2011-040-076 Claimant(s): JESUS SANTIAGO Claimant short name: SANTIAGO Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 120133 Motion number(s): M-80318 Cross-motion number(s): CM-80439 Judge: CHRISTOPHER J. McCARTHY LAW OFFICE OF GABRIEL E. ESTADELLA PLLC Claimant's attorney: By: Gabriel E. Estadella, Esq. 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: December 15, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
For the reasons set forth below, Defendant's motion to dismiss the Claim pursuant to CPLR 3211(a)(2) and (8) on the basis that the Court lacks subject matter jurisdiction over the Claim and personal jurisdiction over the Defendant as a result of Claimant's failure to comply with the service requirements of Court of Claims Act §§ 10 and 11 is granted. The remainder of the motion is denied as moot. Claimant's cross-motion for permission to file a Claim late, pursuant to Court of Claims Act § 10(6), is denied.
The Claim, which was filed with the Clerk of the Court on July 22, 2011, alleges that Claimant was arrested for a shooting incident that occurred on January 27, 2000. He was charged with one count of Criminal Possession of a Deadly Weapon in the Second Degree. On May 3, 2002, Claimant was sentenced to a determinate sentence of three-and-one-half years in the Supreme Court, Kings County, Criminal Term, before Hon. Sheldon Greenberg. There was no agreement between counsel, Court and the People regarding post-release supervision.
Claimant was released from custody on November 3, 2004. After his release, Claimant traveled out of New York State to Virginia, for which he was eventually deemed to have violated the terms of his parole. On November 22, 2005, the State of New York, Division of Parole issued a warrant for Claimant's arrest. The ostensible delinquency date was October 30, 2005. The Division of Parole determined Claimant received five years post-release supervision, and that he violated the terms of that supervision.
Claimant was arrested on December 22, 2005. He remained incarcerated until December 15, 2010, when a re-sentencing hearing was conducted before Hon. Gustin Reichbach of Supreme Court, Kings County, Criminal Term. An Assistant District Attorney appeared for the People and Claimant was represented by counsel. The Court held that no period of post-release supervision constituted part of Claimant's sentence. The Court also deemed that any violation of prior revocation of a Department of Corrections' imposed post-release supervision was a nullity, and vacated same. Claimant was released from custody on December 17, 2010.
The Claim seeks damages for negligence, intentional and negligent infliction of emotional distress, false arrest, false imprisonment, abuse of process, malicious prosecution and violation of civil rights and liberties pursuant to 42 USC § 1981, 1983, 1985(2), (3), 1986 and 1988.
Pursuant to Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim (to the extent Claimant asserts injuries caused by negligence or unintentional torts) or within one year (to the extent he asserts intentional torts of State employees) (Court of Claims Act §§ 10[3], 10[3-b]). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual.
Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in Section 10 of the Court of Claims Act, either personally or by certified mail, return receipt requested. The statute further provides that service by certified mail, return receipt requested, is not complete until the Claim or Notice of Intention to File a Claim is received by the Attorney General. It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 11 gives rise to a jurisdictional defect (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]).
Pursuant to Court of Claims Act § 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense either by motion to dismiss prior to service of the responsive pleading, or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
In his affirmation submitted in support of the State's motion, Defense counsel asserts that the Claim accrued on the date Claimant was released from custody. The Claim asserts that Claimant was released on December 17, 2010. Counsel further asserts that the Attorney General's office received a Claim on August 1, 2011 (see Ex. A attached to Motion). He asserts that the Claim is untimely as it was not served within 90 days of accrual as set forth above. Claimant's counsel, in his affirmation in opposition to the motion, does not controvert that the Claim was not timely served upon Defendant.
Court of Claims Act § 10 is more than a statute of limitations; it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (Mallory v State of New York, 196 AD2d 925, 926 [3d Dept, 1993]; DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973], affd 37 NY2d 735 [1975]; Antoine v State of New York, 103 Misc 2d 664 [Ct Cl 1980]). Failure to timely comply with the statutory service and filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Lyles v State of New York, 3 NY3d 396, 400-401 [2004]; Buckles v State of New York, 221 NY 418 [1917]; Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). The Court cannot waive a defect in jurisdiction that has been timely raised (see Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). The defect asserted was timely and properly raised with particularity, in this pre-Answer motion, in accordance with Court of Claims Act § 11(c).
Based upon the foregoing, Defendant's motion is granted and the Claim is dismissed for failure to timely serve and file it in accordance with Court of Claims Act § 10(3).
The Court next turns to Claimant's cross-motion pursuant to Court of Claims Act § 10(6) seeking permission to serve and file a late claim. The Court notes that the proposed Claim attached to Claimant's counsel's reply affirmation is a copy of the Claim that the Court has just dismissed. The Court will consider the Claim that was just dismissed as the proposed Claim.
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. According to Mr. Santiago's counsel, the proposed Claim asserts several causes of action sounding in intentional tort (CPLR §215[3], a one-year statute of limitations applies to those causes of action) and others sounding in negligence, as well as a constitutional tort for violation of Mr. Santiago's rights (CPLR § 214[5]), a three-year statute of limitations applies to those causes of action). The Claim accrued on December 17, 2010. Thus, the statute of limitations has not yet expired.
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
Perhaps, the most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 [2011], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, supra at 11-12).
In Donald v State of New York (17 NY3d 389 [2011]), the Court of Appeals decided four cases where the claimants were convicted of crimes for which they received determinate sentences. A statute required that such a sentence include a period of post-release supervision ("PRS"), but, in each case, the sentencing judge failed to pronounce a PRS term. Nevertheless, claimants were subjected to PRS by the Department of Correctional Services (DOCS). Claimants brought actions against the State, asserting that DOCS acted without Court authority and administratively added PRS to their prison terms. The Court of Appeals affirmed the dismissal of all the claims.
This is what happened to Mr. Santiago in this case.
Three of the four claimants - Donald, Eanes and Ortiz - brought causes of action alleging false imprisonment. The Court found that none of the claimants pleaded the essential elements of false imprisonment, including two who failed to allege that their confinement was not privileged (id. at 394-395).
In Donald, the Court of Appeals stated:
"A detention, otherwise unlawful, is privileged where the confinement was by arrest under a valid process issued by a court having jurisdiction" (Davis v City of Syracuse, 66 NY2d 840, 842 [1985] [internal quotation marks and citations omitted]). Neither Donald nor Eanes alleges any defect in the process by which he or she was arrested for violating PRS, or in the jurisdiction of the court that issued that process.(id. at 395).
The Court also stated that the claims of three of the claimants referenced above could be read as asserting causes of action for negligence in subjecting them to unauthorized PRS terms. Each of them failed because DOCS' actions involved the exercise of "reasoned judgment" (id.).
The Court of Appeals in Donald stated that the false imprisonment causes of action failed because the claimants failed to allege that their confinement was not privileged (id.). The Court also specifically stated that an otherwise unlawful detention is privileged where the confinement was by arrest under a valid process issued by a Court having jurisdiction (id.). The Court further stated that the Donald claimants did not allege "any defect in the process by which he or she was arrested for violating PRS, or in the jurisdiction of the court that issued that process" (id.). The Court of Appeals based its determination that the confinement was privileged, not on the determination of DOCS to impose PRS, but, rather, upon the absence of any allegation that there was a defect in either the process by which the Donald claimants were arrested or in the jurisdiction of the Court that issued the process.
Here, we have a situation where Claimant has alleged all the elements of false imprisonment but has not established that the confinement was not otherwise privileged in that he has not established that there was a defect in the process by which he was arrested or in the jurisdiction of the Court that sentenced him to prison. Thus, Claimant has failed to establish that his false imprisonment cause of action has the appearance of merit. Likewise, Claimant has failed to establish that his negligence cause of action has the appearance of merit because DOCS' actions involved the exercise of reasoned judgment.
Mr. Santiago also asserts a constitutional tort cause of action based on violations of several Federal statutes. No action may be maintained in this Court against the State for alleged Federal constitutional violations (Shelton v New York State Liquor Auth., 61 AD3d 1145, 1151 [3d Dept 2009]; Lyles v State of New York, 194 Misc 2d 32, 35-36 [Ct Cl 2002], affd 2 AD3d 694, 696 [2d Dept 2003], affd on other grounds 3 NY3d 396 [2004]; Matter of Thomas v New York Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723 [3d Dept 1981], affd 56 NY2d 656 [1982]). To the extent that Claimant asserts Federal constitutional violations, his remedy lies elsewhere. As this Court has no jurisdiction over these causes of action, the Court concludes that Claimant has failed to establish that they have the appearance of merit.
Thus, the Court concludes that the proposed Claim lacks the appearance of merit. Because it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request, Movant's motion is denied.
December 15, 2011
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's motion to dismiss and Movant's cross-motion for permission to serve and file a claim late:
Papers Numbered
Notice of Motion, Affirmation in Support and Exhibit Attached 1
Notice of (Cross) Motion, Affirmation in Opposition to Motion to Dismiss & in Support of Cross Motion 2
Affirmation in Opposition to Claimant's Cross-Motion 3
Reply Affirmation of Claimant's Counsel 4
Filed Papers: Claim