Opinion
# 2017-038-541 Claim No. 128309 Motion No. M-89543 Motion No. M-89945 Cross-Motion No. CM-89666
06-09-2017
RICHARD TEVAULT v. STATE OF NEW YORK
RICHARD TEVAULT, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York Glenn C. King, Assistant Attorney General
Synopsis
Claimant's motion for summary judgment denied as moot because defendant's cross motion to dismiss claim for untimely service granted. Claim for wrongful confinement in SHU sounded in intentional tort, not negligence, and timely notice of intention extended time for service by one year (Court of Claims Act § 10 [3]). Claimant's motion to treat notice of intention as claim or file a late claim denied, as motion was made beyond the one-year statute of limitations set forth in CPLR 215 (3).
Case information
| UID: | 2017-038-541 |
| Claimant(s): | RICHARD TEVAULT |
| Claimant short name: | TEVAULT |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128309 |
| Motion number(s): | M-89543, M-89945 |
| Cross-motion number(s): | CM-89666 |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | RICHARD TEVAULT, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York Glenn C. King, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 9, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, filed this claim in which he alleges that he was subject to wrongful excessive confinement in a Special Housing Unit (SHU) for 154 days from August 25, 2014 to January 25, 2015. Claimant moves for summary judgment (M-89543). Defendant opposes the motion and cross-moves to dismiss the claim on jurisdictional grounds, asserting that it was not timely served upon the Attorney General (CM-89666). Claimant opposes defendant's cross motion, and also moves for permission to treat the notice of intention to file a claim as the claim or to deem the claim as a late claim (M-89945), which defendant opposes.
Defendant's cross motion challenges the Court's jurisdiction to entertain the claim, and will therefore be addressed first. Court of Claims Act §§ 10 (3), (3-b) and 11 (a) (i) require, inter alia, that a notice of intention to file a claim or the claim itself be served upon the Attorney General within 90 days after accrual of the claim. A timely served notice of intention will extend the time within which to serve and file the claim to two years after the date of accrual of a claim sounding in negligent or unintentional torts (see Court of Claims Act § 10 [3]), and for one year for claims asserting intentional torts (see Court of Claims Act § 10 [3-b]). It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional in nature, and that the failure to timely serve the claim upon the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]).
The claim alleges that claimant was found guilty after a hearing of a misbehavior charge and was assessed an administrative penalty of five months in SHU, that it accrued on January 25, 2015 upon claimant's release from SHU confinement, and that a notice of intention to file a claim was timely served. The claim further alleges that the disciplinary determination was subsequently annulled and expunged following a CPLR article 78 proceeding because claimant was denied a witness at the hearing. The claim asserts that claimant was "wrongfully excessively confined . . . in violation of his procedural and substantive due process rights, which gave rise to a liberty interest protected by the Fourteenth Amendment of the United States (See USCA Const. Amend 14; 7 NYCRR §§ 250-256; et seq. . . )" (Claim number 128309, ¶ 21). Defendant asserts in its answer that the claim was untimely because although a timely notice of intention was served, the claim was served more than one year after the accrual of the claim (see Verified Answer, ¶¶ TWENTIETH), thereby preserving the defense (see Court of Claims Act § 11 [c]).
Defendant's submission establishes that claimant timely served a notice of intention to file a claim on April 10, 2015, which was within 90 days of the January 25, 2015 accrual date in the claim. Defendant argues that the claim sounds in the intentional tort of wrongful confinement, and that the notice of intention extended the time to serve and file the claim by one year, to on or before January 25, 2016. Defendant's submission establishes that the claim was not served until July 15, 2016 (see King Affirmation, Exhibit A; Court of Claims Act § 11 [a] [i]), almost six months beyond that date, and defendant argues that the claim is therefore untimely. Claimant argues that the claim sounds in unintentional tort, and because it was served within two years of its accrual, it is timely.
Claims alleging wrongful confinement in the context of incarceration in a correctional facility generally sound in intentional tort (see Gittens v State of New York, 132 Misc 2d 399, 407 [Ct Cl 1986]), because the factual allegations in such claims usually state the elements of a cause of action for false imprisonment (see Martinez v City of Schenectady, 97 NY2d 78, 85 [2001] [defendant intended to confine plaintiff, who was conscious of the confinement and did not consent to it, and the confinement was not otherwise privileged]). In limited factual circumstances, such a claim may also sound in negligence (see Ramirez v State of New York, 171 Misc 2d 677, 682 [Ct Cl 1997]), where, for example, the claim alleges conduct that was "almost certainly unintentional," such computation errors, or an erroneous misapplication of rules governing release (see id., at 683). The periods of limitations for institutional wrongful confinement will depend upon "whether the claim is predicated on intentional or negligent conduct" (Kairis v State of New York, 113 AD3d at 942), and a court that is evaluating a cause of action for purposes of determining the applicable limitations period is not bound by a party's characterization of the nature of the cause of action, but must examine and determine the true gravamen of the cause of action (see Western Elec. Co. v Brenner, 41 NY2d 291, 293 [1977]; Gold v New York State Bus. Group, 255 AD2d 628, 630 n [3d Dept 1998]; Marine Midland Bank v Jerry Hamam, Inc., 96 AD2d 1137, 1138 [4th Dept 1983]).
Defendant correctly argues that this claim is properly construed as an intentional tort as a species of false imprisonment. The claim clearly alleges that SHU confinement was intentionally imposed following a finding of guilt on a disciplinary charge and the claim contains all of the elements of a false imprisonment cause of action. Thus, the claim was required to have been served within one year of its accrual, or on or before January 25, 2016, and because it was not served on the Attorney General until July 15, 2016, the claim is untimely.
Claimant's argument that he could not have instituted a claim prior to the Appellate Division's March 3, 2016 decision on his CPLR article 78 challenge (see Tevault Reply Affidavit, ¶¶ 11-14) is without merit as he would not have been precluded from proving his claim without that decision. --------
Claimant's argument that the claim sounds in unintentional tort is unavailing. As noted above, a claim sounding in wrongful excessive confinement may sound in negligence when it alleges that correction officials failed to release an inmate from confinement for which the authorization has expired, in violation of correctional rules and regulations (see Ramirez v State of New York, 171 Misc 2d at 683). Simply put, for a wrongful excessive confinement claim to sound in negligence and benefit from the two-year period set forth in Court of Claims Act § 10 (3), it must include an allegation akin to ministerial negligence, i.e. that rules and regulations required that claimant be released from the confinement and that defendant failed to do so, and this claim contains no such allegations. Rather, this claim alleges that claimant was confined in the SHU due to a defective disciplinary proceeding that violated DOCCS rules and regulations and claimant's due process rights, that the violations resulted in a guilty determination, and the guilty determination resulted in claimant's confinement in the SHU. Although the alleged due process violations may have resulted from unintentional conduct, the gravamen of the claim is defined by whether the determination to confine claimant was intentional or unintentional. Here, the determination to confine claimant in the SHU was an intentional imposition of a disciplinary penalty and accordingly, the claim is properly construed as sounding in intentional tort.
To the extent that the claim could be construed as sounding in constitutional tort, which might support a later limitation period for service of the claim, it alleges a violation of federal constitutional rights over which this Court lacks jurisdiction (see Carver v State of New York, 79 AD3d 1393, 1395 [3d Dept 2010], lv denied 17 NY3d 707 [2011]).
Turning next to claimant's motion to treat the notice of intention as the claim, or, in the alternative, to deem the filed claim as a late claim, such relief will not be granted. A motion seeking permission to treat the notice of intention as the claim must be filed "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" (Court of Claims Act § 10 [8] [a]). The failure to file the motion within the prescribed time period precludes the Court from granting the motion (see Maendel v State of New York, 178 Misc 2d 297 [Ct Cl 1998]; Brooks v State of New York, UID No. 2001-001-031 [Ct Cl, Read, J., June 22, 2001]; see also Matter of Miller v State of New York, 283 AD2d 830, 831 [3d Dept 2001]). This claim sounds in intentional tort, as discussed above, and is therefore subject to a one-year statute of limitations (see CPLR 215 [3]), and thus claimant's time within which to file the motion expired on January 25, 2016. The motion to treat the notice of intention as the claim was not filed until February 9, 2017, and is therefore untimely. To the extent that claimant's motion seeks an order directing that the filed claim be treated as a late claim under Court of Claims Act § 10 (6) is not properly before the Court, inasmuch as the correct procedure is to seek leave to file a late claim. Even if the motion were correctly made, it would be denied on similar grounds, namely that the motion was filed after the expiration of the one-year statute of limitations in CPLR § 215 (3) (see Court of Claims Act § 10 [6] ["permission to file such claim at any time 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"]; see also Matter of Miller v State of New York, 283 AD2d at 831; Bergmann v State of New York, 281 AD2d 731, 733-734 [3d Dept 2001]; Williams v State of New York, 235 AD2d 776, 777 [3d Dept 1997], lv denied 90 NY2d 806 [1997] [failure to file the motion within the prescribed time period is a jurisdictional defect which precludes the Court from granting such a motion]).
Inasmuch as defendant's cross motion to dismiss the claim for lack of jurisdiction as untimely will be granted and claimant's motion to treat the notice of intention as the claim and request for late claim relief will be denied, claimant's motion for summary judgment is moot and need not be addressed.
Accordingly, it is
ORDERED, that defendant's cross motion number CM-89666 is GRANTED, and claim number 128309 is DISMISSED; and it is further
ORDERED, that claimant's motion number M-89543 is DENIED; and it is further
ORDERED, that claimant's motion number M-89945 is DENIED.
June 9, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 128309, filed August 3, 2016; (2) Verified Answer, filed August 4, 2016; (3) Notice of Motion for Summary Judgment (M-89543), dated October 28, 2016; (4) Affidavit of Richard Tevault in Support of Summary Judgment, sworn to October 28, 2016, with Exhibits A-G; (5) Memorandum of Law in Support of Summary Judgment, dated October 28, 2016; (6) Notice of Cross Motion (CM-89666), dated December 14, 2016; (7) Affirmation of Glenn C. King, AAG, dated December 14, 2016, with Exhibits A-B; (8) Reply Affidavit of Richard Tevault, sworn to December 19, 2016; (9) Notice of Motion (M-89945), filed February 9, 2017; (10) Affidavit of Richard Tevault in Support of Treating Claimant's Notice of Intention as the Claim and/or for Permission to File Late Claim, sworn to February 3, 2017; (11) Affirmation of Glenn C. King, AAG, dated March 8, 2017.