Opinion
# 2017-018-809 Claim No. 128719 Motion No. M-89549
02-01-2017
JULIAN WRIGHT v. STATE OF NEW YORK
JULIAN WRIGHT Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Sean B. Virkler, Esquire Assistant Attorney General
Synopsis
Claim is untimely and therefore, DISMISSED.
Case information
| UID: | 2017-018-809 |
| Claimant(s): | JULIAN WRIGHT |
| Claimant short name: | WRIGHT |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128719 |
| Motion number(s): | M-89549 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | JULIAN WRIGHT Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Sean B. Virkler, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 1, 2017 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings a pre-answer motion to dismiss the claim for lack of personal and subject matter jurisdiction. Claimant sent an undated letter to the Court, received by the Court on December 21, 2016. It does not appear that Claimant sent a copy of this letter to the Defendant or filed it with the Clerk of the Court. As a result, the Court will not consider Claimant's response.
On October 27, 2016, Claimant filed a claim seeking damages for unlawful confinement based upon a misbehavior report issued to Claimant at Gouverneur Correctional Facility on May 8, 2016. The misbehavior report alleged that Claimant had violated Department of Corrections and Community Service (DOCCS) Rule 113.24, which prohibits inmates from being under the influence of any narcotic or controlled substance without a prescription. It was alleged that Claimant was under the influence of K2 cigarettes. Claimant was placed in the Special Housing Unit (SHU) on May 8, 2016, and found guilty after a Tier III Superintendent's Hearing which concluded on May 17, 2016, and given a penalty of six months in the SHU. Claimant alleges that a urinalysis test performed after Claimant was charged showed no controlled substances in Claimant's system. Claimant appealed the Tier III hearing findings, which were reversed on July 15, 2016, and Claimant was released 11 days later.
Defendant acknowledges that a notice of intention to file a claim was served upon the Assistant Attorney General on September 21, 2016, and the claim was served on October 19, 2016. Defendant argues that the claim was not filed and served within 90 days of the date of accrual, which, for an unlawful confinement claim, is the date Claimant was released from the SHU; July 26, 2016. By this motion, Defendant contends that the claim needed to be filed and served by October 24, 2016, but the claim was not filed until October 27, 2016, rendering it untimely under the Court of Claims Act. Defendant also argues that the notice of intention which Claimant timely served fails to meet the requirements of Court of Claims Act section 11 (b), because it does provide the necessary details - the dates Claimant was wrongfully confined or released, the date his misbehavior findings were reversed, the rule or regulation he allegedly violated, or any particularity about how the State was negligent, and it incorrectly lists the accrual date as May 8, 2016.
A claim against the State for either intentional or negligent wrongdoing, must be served and filed within 90 days of the date of accrual, unless a notice of intention is served within the same time frame, then the time to file and serve the claim is extended to one year from the date of accrual for an intentional cause of action, and two years for an unintentional or negligent cause of action (Court of Claims Act § 10 [3] or [3-b]). A claim for wrongful confinement accrues when the confinement ends (Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]). Claimant's confinement ended 11 days after July 15, 2016, the date of the reversal of the misbehavior findings. Accordingly, the Claim had to be served and filed by October 24, 2016. Although it was timely served, it was not timely filed and, since both must be performed timely under the statute, the claim is jurisdictionally defective (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]).
Claim, ¶ 5. --------
A notice of intention was timely served. However, it must also substantively comply with the requirements of Court of Claims Act section 11 (b) in order to be jurisdictionally effective to extend the time for filing and service of the claim under Article 10 of the Court of Claims Act. Defendant has attached, as Exhibit A, a copy of the notice of intention which Claimant served upon the State. The only date provided is May 8, 2016, which, from the claim, is the date Claimant allegedly engaged in the misbehavior, not the date he was released from confinement. Claimant also does not specify the dates on which he was allegedly wrongfully confined, or the rules and regulations the State allegedly violated. Without at least the dates of confinement, the State was unable to assess the timeliness of the potential claim.
A notice of intention need not meet these statutory requirements with "[a]bsolute exactness." What is required is a statement made with sufficient definiteness to enable the State to investigate the allegations promptly to ascertain its liability under the circumstances and to not mislead, deceive, or prejudice the rights of the State (Heisler v State of New York, 78 AD2d 767, 767-768 [4th Dept 1980]; Grumet v State of New York, 256 AD2d 441 [2d Dept 1998]; Sega v State of New York, 246 AD2d 753 [3d Dept 1998]). "A notice of intention will be sufficient if it provides the State with fair and timely notice of those facts necessary to conduct a meaningful investigation." (Cannon v State of New York, 163 Misc 2d 623, 626 [Ct Cl 1994]; Cendales v State of New York, 2 AD3d 1165, 1167 [3d Dept 2003]; Schwartzberg v State of New York, 121 Misc 2d 1095, 1100 [Ct Cl 1983], affd 98 AD2d 902 [3d Dept 1983]). "In short substantial compliance with section 11 is what is required." (Heisler, 78 AD2d at 767). Here, the notice of intention fails to set forth necessary information as to the date the confinement ended and the cause of action accrued and, instead, is somewhat misleading in setting forth May 8, 2016, as the only date as (see Wilson v State of New York, 61 AD3d 1367 [4th Dept]; Kelly v State of New York, UID No. 2015-038-569 [Ct Cl, DeBow, J. Oct. 20, 2015]). As a result, the notice of intention did not extend Claimant's time for filing and serving a claim under Court of Claims Act section 10, and the Claim, which was not served or filed within 90 days of accrual, is untimely.
Accordingly, Defendant's motion is GRANTED and the claim is DISMISSED. Claimant's only relief is to bring a timely late claim application.
February 1, 2017
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this matter: 1) Notice of Motion. 2) Affirmation of Sean B. Virkler, Esquire, Assistant Attorney General, in support, with exhibits attached thereto.