Opinion
# 2019-015-173 Claim No. 127876 Motion No. M-94154
07-19-2019
JOSE SOTO v. THE STATE OF NEW YORK
No Appearance Honorable Letitia James, Attorney General By: Thomas J. Reilly, Esq., Assistant Attorney General
Synopsis
Defendant's dismissal motion was granted inasmuch as claimant failed to serve his claim within the time provided in the court order granting late claim relief and beyond the statute of limitations set forth in CPLR article 2.
Case information
| UID: | 2019-015-173 |
| Claimant(s): | JOSE SOTO |
| Claimant short name: | SOTO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127876 |
| Motion number(s): | M-94154 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | No Appearance |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Thomas J. Reilly, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 19, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves for dismissal on the ground the claim was served beyond the time permitted by a Court Order granting claimant's motion for late claim relief, and after the statute of limitations set forth in CPLR 215 (3) expired.
By Decision and Order of this Court filed March 9, 2016, claimant's motion for permission to file and serve a late claim alleging causes of action for assault and battery was granted, and claimant was directed to "file and serve his verified claim in accordance with Court of Claims Act §§ 11 and 11-a within 45 days of the date this Decision and Order is filed" (defendant's Exhibit C, p. 5). The claim was filed on May 2, 2016 and served on May 3, 2016 when it was received by certified mail, return receipt requested, in the Office of the Attorney General.
Claimant, an inmate in the custody of the Department of Corrections and Community Supervision, asserts a cause of action for assault and battery by correction staff at Great Meadow Correctional Facility on December 24, 2014. Defendant argues in support of its dismissal motion that claimant served the claim more than 45 days after the Decision and Order granting late claim relief was filed and beyond the expiration of the applicable statute of limitations.
CPLR 215 (3) provides a one-year statute of limitations for actions to recover damages for assault and battery. While claimant's motion to file a late claim was made within the statute of limitations, the Decision and Order required that the claim be filed and served within 45 days of the date the Decision and Order was filed. The claim was not filed and served within the 45-day period. While the Court has discretion to extend the time fixed by an Order where the statute of limitations set forth in article 2 of the CPLR has not expired as of the date the claim was served (Canales v State of New York, 51 Misc 3d 648 [Ct Cl 2015] [claim filed and served beyond the court ordered date to do so but before the expiration of the statute of limitations was deemed timely filed and served nunc pro tunc]), no such discretion exists where the claim is filed or served after the expiration of the applicable statute of limitations (Roberts v City Univ. of N.Y., 41 AD3d 825 [2d Dept 2007] [time for filing and service of claim set forth in court Order granting late claim relief could not be extended beyond the statute of limitations]). Court of Claims Act § 10 (6) makes clear that discretion to permit the late filing of a claim is limited to those actions which, as against a citizen of the state, would not be barred under article 2 of the CPLR. Inasmuch as filing and service of the claim occurred both beyond the 45-day period set forth in the Decision and Order and subsequent to the expiration of the one-year statute of limitations set forth in article 2 of the CPLR (CPLR 215 [3]), the Court is without discretion to extend the time for filing and service of the claim.
Accordingly, defendant's motion is granted, and the claim is dismissed.
July 19, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of Motion dated June 21, 2019;
2. Affirmation of Thomas J. Reilly, A.A.G. dated June 21, 2019, with Exhibits A - C.