Opinion
# 2020-038-522 Claim No. 126300 Motion No. M-95032
02-25-2020
ANTHONY WALKER v. THE STATE OF NEW YORK
No Appearance LETITIA JAMES, Attorney General of the State of New York By: Christina Calabrese, AAG
Synopsis
Defendant's unopposed motion to dismiss the claim granted. The notice of intention failed to allege the place where the claim arose and thus failed to comply with the pleading requirement of Court of Claims Act § 11 (b) and did not extend the time to file and serve the claim.
Case information
| UID: | 2020-038-522 |
| Claimant(s): | ANTHONY WALKER |
| Claimant short name: | WALKER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126300 |
| Motion number(s): | M-95032 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | No Appearance |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Christina Calabrese, AAG |
| Third-party defendant's attorney: | |
| Signature date: | February 25, 2020 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual formerly incarcerated in a State correctional facility, filed this claim seeking compensation for 150 days of wrongful confinement in the Special Housing Unit (SHU) at Bare Hill Correctional Facility (CF) beginning in June 2014. Defendant now moves to dismiss the claim on the grounds that it fails to state a cause of action and that it is jurisdictionally defective due to untimeliness. Claimant has not responded to the motion, which will be granted for the reasons that follow.
The claim alleges that on June 11, 2014, claimant was issued two inmate misbehavior reports (IMRs), one for violating disciplinary rules 104.12 (demonstration) and 102.10 (threats), and another for violating disciplinary rule 113.10 (weapon) (see Claim No. 126300, ¶ 3). The claim alleges that Hearing Officer (HO) Boyd stated at the disciplinary hearing on June 17, 2014 that if claimant pleaded not guilty, "I'm going to give you a lot of time in the [SHU]" (id., ¶ 6). The claim alleges that claimant nevertheless pleaded not guilty to all three rule violations (see id. at ¶ 7), and that during the disciplinary hearing, HO Boyd again threatened claimant with "a lot of time in the [SHU]" when claimant objected "to procedural violations that occurred during [the] hearing for the demonstration and threats charges" (id. at ¶ 8). The claim alleges that on June 19, 2014, HO Boyd found claimant guilty of violating disciplinary rule 113.10 (weapon), and that on June 25, 2014, HO Boyd found claimant guilty of violating disciplinary rules 104.12 (demonstration) and 102.10 (threats) (see id. at ¶¶ 9-10). The claim alleges that both disciplinary determinations were rendered at Bare Hill CF and that claimant received 240 days in the SHU and a corresponding loss of privileges (see id. at ¶ 11). The claim alleges that claimant administratively appealed both disciplinary determinations, that the June 25, 2014 disciplinary determination was administratively reversed on August 26, 2014, and that the June 19, 2014 disciplinary determination was administratively reversed on February 5, 2015 (see id. at ¶¶ 12-13, Exhibits B & D). The claim alleges that claimant served 150 days in the SHU, with corresponding loss of privileges, and that claimant suffered emotional injuries as a result (see id. at ¶ 15) and seeks $22,000 in damages.
The Hearing Disposition reports rendered by HO Boyd that are attached to the claim reflect that claimant received five months in the SHU and corresponding loss of privileges for the weapons charge, to run from June 19, 2014 to November 19, 2014, and three months in the SHU and corresponding loss of privileges for the demonstration and threats charges, to run from November 19, 2014 to February 19, 2015 (see Claim No. 126300, Exhibits A & C).
Turning first to defendant's argument that the Court lacks jurisdiction over the claim because it is untimely, Court of Claims Act §§ 10 (3-b) and 11 (a) (i) require for claims alleging intentional torts that a notice of intention to file a claim or the claim itself be served on the Attorney General within 90 days after the accrual of the claim. A timely served notice of intention will extend the time within which to serve and file the claim to one year after the date of accrual of a claim sounding in intentional tort (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 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]). A claim for wrongful confinement typically sounds in intentional tort (see Manuel v State of New York, UID No. 2018-038-561 [Ct Cl, DeBow, J., June 21, 2018]; Nanton v State of New York, UID No. 2017-038-578 [Ct Cl, DeBow, J., Oct. 12, 2017]), and accrues upon claimant's release from that confinement (see Campos v State of New York, 139 AD3d 1276, 1277 [3d Dept 2016]; Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011]; Miranda v State of New York, 42 Misc 3d 1226[A], 2012 NY Slip Op 52505[U], *4 [Ct Cl 2012], affd 113 AD3d 943 [3d Dept 2014]).
Defendant argues in support of its motion that the notice of intention was insufficient to extend claimant's time to file and serve the claim because the notice of intention failed to comply with the pleading requirements of Court of Claims Act § 11 (b), including the time and place the claim arose and the nature of the claim, thus depriving defendant of notice and the opportunity to investigate the incident (see Calabrese Affirmation, ¶¶ 16-25). Defendant further argues that, in any event, because the notice of intention was served on September 19, 2014, prior to the reversal of the June 19, 2014 disciplinary determination on February 5, 2015, it was ineffective as to the confinement that resulted from that determination (see id. at ¶ 26). As noted above, claimant has not responded to the motion.
Due to an apparent typographical error, defense counsel's affirmation erroneously states that the notice of intention was served on September 4, 2014.
Contrary to defendant's assertion, the notice of intention is not premature with respect to the confinement that resulted from the June 19, 2014 disciplinary determination. The claim alleges that the June 19, 2014 disciplinary determination was administratively reversed on February 5, 2015 based on a finding that the hearing tape with respect to that determination was incomplete (see Claim No. 126300, ¶ 13). The notice of intention was served on the Attorney General on September 19, 2014, over four months prior to the earliest possible date on which the wrongful confinement claim with respect to the June 19, 2014 disciplinary determination could have accrued. However,
"[t]he purpose of the filing requirements of [Court of Claims Act section 10] is to provide notice to the State of claims against it, and of claims intended to be filed in the future. This is the prime consideration in determining whether substantial compliance with the statute has been made. Consequently, the fact . . . that [the] claim had not technically 'accrued' does not detract in the slightest from its effectiveness in providing notice to the State"
(St. Paul Fire & Mar. Ins. Co. v State of New York, 99 Misc 2d 140, 148 [Ct Cl 1979]). Thus, a notice of intention served before a claim accrues may be effective to extend the time to file and serve the claim so long as it sufficiently puts the State on notice of the occurrence that forms the basis of the claim (see Budgar v State of New York, 98 Misc 2d 588, 592-593 [Ct Cl 1979] [notice of intention filed nearly five months before accrual of malicious prosecution claim was effective for purpose of extending time to file and serve the claim because it gave "the required notice of the transactions on which the claim for malicious prosecution was based"]; see Wiggins v State of New York, UID No. 2016-041-021 [Ct Cl, Milano, J., Apr. 27, 2016] [notice of intention served prior to accrual of wrongful confinement claim effectively extended time to file and serve the claim because it "was sufficient to allow the defendant to promptly investigate its potential liability under the circumstances" and "satisfied the requirements of Court of Claims Act §§ 10 and 11"]; Syrkin v State of New York, UID No. 2006-030-524 [Ct Cl, Scuccimarra, J., Apr. 5, 2006] ["Serving a Notice of Intention containing a prospective date of accrual is not always fatal to preserving a claim, though it depends on the context"]; cf. Chaney v State of New York, UID No. 2017-040-147 [Ct Cl, McCarthy, J., Dec. 13, 2017]). Thus, the premature service of the notice of intention alone does not render the notice of intention ineffective. However, as discussed below, the notice of intention failed to comply with the pleading requirements of Court of Claims Act § 11 (b) and was insufficient to extend claimant's time to file and serve the claim.
The Court of Claims Act requires that a notice of intention "shall state the time when and place where such claim arose" and "the nature of same" (Court of Claims Act § 11 [b] [emphasis added]). Court of Claims Act § 11 (b) "requires a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State" (Grumet v State of New York, 256 AD2d 441, 442 [2d Dept 1998] [internal quotation marks omitted]). Significantly, "the State is not required to go beyond the . . . notice of intention in order to investigate an occurrence, or ferret out information which should be provided under section 11 (b)" (Wilson v State of New York, 35 Misc 3d 227, 230 [Ct Cl 2011]).
Here, the notice of intention that was served on the Attorney General on September 19, 2014 states that "[a]t approx. 11:50 AM, . . . while confined in Upstates [sic] Correctional Facility [SHU], [claimant] was issued two misbehavior reports" for violations of disciplinary rules 104.12 (demonstration), 102.10 (threats), and 113.10 (weapon) (Calabrese Affirmation, Exhibit C [Notice of Intention, p. 1]). The notice of intention further alleges that
"[t]he claim arose on [June 19, 2014] when [claimant] was found guilty for the weapon charge after being threatened and harassed to plead guilty to the charges and on [June 25, 2014] when [claimant] was found guilty of the charges [for] demonstration [and] threats after being threatened [and] harassed to plead guilty to the charges.
"The injuries claimed are as follows: I was given as a result of pleading not guilty I was given 8 months in the SHU, 8 months loss of phones, packages, commissary, recreation, and 8 months recommended good time. The Hearing Officer blatantly told me that I was going to plead guilty to the charges or he was going to give me all the time of deprivation that he did if I didn't. The Hearing Officer['s] mind was already made up as to my guilt before I entered the office and he intentionally subjected me to arbitrary governmental action by negating my deffense [sic] with his complete biasness [sic]"
(id. at p. 2).
Although the notice of intention alleges that claimant was served with the two IMRs while he was in the Upstate CF SHU and that he was subsequently found guilty of the charges, it does not allege where the disciplinary hearings occurred or where he was subjected to the Hearing Officer's bias. Thus, the notice of intention that was served on the Attorney General on September 19, 2014 failed to comply with the requirements of Court of Claims Act § 11 (b) and was insufficient to extend claimant's time to file and serve the claim.
As noted above, the claim that was later filed with the Court on June 15, 2015 alleged that the disciplinary determinations that form the basis of this claim were rendered at Bare Hill CF (see Claim No. 126300, ¶ 2).
As noted above, a claim sounding in wrongful confinement accrues on the date claimant is released from that confinement. Here, the claim does not indicate the date upon which claimant was released from the allegedly wrongful confinement, but the claim alleges that claimant "erroneously served 150 days in the [SHU] of the 240 days [SHU] time" he received and that the disciplinary determinations that formed the basis of that confinement were reversed on August 26, 2014 and February 5, 2015 (Claim No. 126300, ¶ 15 [a]), and the Hearing Disciplinary reports attached to the claim reflect that claimant was to have been released from SHU on February 19, 2015 (see id., Exhibit A). In the absence of any alleged accrual date in the claim or notice of intention, the latest accrual date for the claim would be February 19, 2015, the date that claimant was to be released from his confinement, and thus the claim was required to have been served and filed no later than May 20, 2015 in order to be timely. The claim was filed and served on June 15, 2015, and was therefore clearly untimely. Inasmuch as defendant has raised the jurisdictional defense that the claim was untimely (see Verified Answer, Seventh Defense), and claimant has not responded to this motion, the claim must be dismissed.
In light of the foregoing, the Court need not address defendant's alternative argument that the claim fails to state a cause of action.
In any event, defendant's argument that the claim fails to state a cause of action because it fails to allege a proper accrual date (i.e. the date upon which claimant was released from his confinement, rather than the date of the two disciplinary determinations) is unavailing inasmuch as Court of Claims Act § 11 (b) requires that "[t]he claim shall state the time when . . . such claim arose" rather than the date that the claim accrued. Thus, the Court would not dismiss the claim on the basis of defendant's argument that the claim fails to allege the accrual date of the wrongful confinement cause of action (see Green v State of New York, UID No. 2019-041-049 [Ct Cl, Milano, J., Aug. 2, 2019]). --------
Accordingly, it is
ORDERED, that defendant's motion number M-95032 is GRANTED, and claim number 126300 is DISMISSED; and it is further
ORDERED, that claim number 126300 is STRICKEN from the Court's March 23, 2020 trial calendar.
February 25, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: 1. Claim No. 126300, filed June 15, 2015; 2. Verified Answer, filed July 6, 2015; 3. Note of Issue, filed September 27, 2019; 4. Notice of Motion to Dismiss, dated December 4, 2019; 5. Affirmation of Christina Calabrese, AAG, in Support of Motion to Dismiss, dated December 4, 2019, with Exhibits A-C; 6. Affidavit of Service of Katherine J. Hamilton, sworn to December 4, 2019.