Opinion
# 2021-032-031 Claim No. 134857 Motion No. M-96198
04-13-2021
ELISHA TORRES v. STATE OF NEW YORK
Elisha Torres, Pro Se Hon. Letitia James, Attorney General By: Ray A. Kyles, AAG
Synopsis
Defendant's motion to dismiss denied. Notice of intention and claim were both timely served.
Case information
| UID: | 2021-032-031 |
| Claimant(s): | ELISHA TORRES |
| Claimant short name: | TORRES |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 134857 |
| Motion number(s): | M-96198 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Elisha Torres, Pro Se |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Ray A. Kyles, AAG |
| Third-party defendant's attorney: | |
| Signature date: | April 13, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed the instant claim with the Clerk of the Court on June 1, 2020 alleging a cause of action for wrongful confinement. Specifically, claimant alleges that the hearing officer presiding over his Tier III hearing violated Department of Corrections and Community Supervision (DOCCS) directives while conducting the hearing. Defendant now moves to dismiss the claim on the ground that the claim is untimely.
As relevant here, "[a] claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept. 2011]; see Court of Claims Act § 10 [3], [3-b]). A claim alleging wrongful confinement accrues on the date that the confinement ends (Kairis v State of New York, 113 AD3d 942, 942 [3d Dept. 2014]; Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept. 2011]). The accrual date of the claim is April 26, 2019--the date that claimant was released from the Special Housing Unit. Claimant timely served a notice of intention to file a claim upon defendant on June 25, 2019 (Affirmation of Ray A. Kyles, AAG, Exhibit A). Thus, claimant's time to file and serve a claim was extended to June 25, 2020 -- one year from the date of accrual (Court of Claims Act § 10 [3-b]). Claimant timely filed and served the claim on June 1, 2020.
On March 20, 2020, in response to the coronavirus public health emergency, Governor Cuomo issued Executive Order No. 202.8, which, among other things, directed that "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to [certain state laws], any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020" (Executive Order No. 202.8, dated Mar. 20, 2020 [9 NYCRR 8.202.8] [emphasis added]). That directive was extended through successive Executive Orders, with the final extension through and including "November 3, 2020, and after such date any such time limit will no longer be tolled" (Executive Order No. 202.67, dated Oct. 4, 2020 [9 NYCRR 8.202.67]). The Court need not determine the effect of the toll on claimant's filing and service of the claim as claimant timely filed and served the claim without the benefit of the toll.
Defendant does not clearly articulate its reason for arguing that the notice of intention to file a claim was untimely. The Court surmises that, because the notice of intention to file a claim states that the claim "occurred" on November 16, 2018, instead of the proper accrual date of April 26, 2019 (Affirmation of Ray A. Kyles, AAG, Exhibit A), defendant argues that the notice of intention was untimely served on June 25, 2019 if measuring 90 days from November 16, 2018. As stated by Judge DeBow, "the lack of a proper accrual date, in and of itself, is not a ground for dismissal of the claim" as "the jurisdictional pleading requirements of the Court of Claims Act require that the claim contain allegations as to when it arose" (Best v State of New York, UID No. 2020-038-589 [Ct Cl, DeBow, J., Dec. 22, 2020] [emphasis in original]). The notice of intention states that the claim arose on November 16, 2018, and further states that claimant was found guilty of all charges at a Tier III hearing that took place on that date. The notice of intention further states that claimant was then sentenced to 6 months of Special Housing Unit confinement. Thus, the notice of intention complied with Court of Claims Act § 11 (b) as it was sufficient for defendant to ascertain its liability (see Lopez v State of New York, UID No. 2019-038-570 [Ct Cl, DeBow, J., July 22, 2019] [finding that the claim complied with Court of Claims Act § 11 (b) where claimant alleged an erroneous accrual date for his wrongful confinement claim, as the claim contained facts sufficient for defendant to ascertain its liability]).
Unpublished decisions and selected orders of the Court of Claims are available at http://www.nyscourtofclaims.state.ny.us. --------
Based upon the foregoing, defendant's motion to dismiss the claim (M-96198) is DENIED.
April 13, 2021
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion to Dismiss, dated August 25, 2020; and Affirmation in Support of Defendant's Motion to Dismiss, affirmed by Ray A. Kyles, AAG on August 25, 2020, with Exhibits A through C annexed thereto. 2. Claimant's Answer to Defendant's Motion to Dismiss, sworn to by claimant on September 10, 2020.