Opinion
# 2020-015-033 Claim No. 127936 Motion No. M-95016
04-27-2020
MICHAEL SERVICE, DIN #11-A-0310, [an Inmate-Prisoner] v. STATE OF NEW YORK
Michael Service, Pro Se Honorable Letitia James, Attorney General By: Thomas J. Reilly, Esq., Assistant Attorney General
Synopsis
In a pro se inmate's claim for wrongful confinement, defendant's motion to dismiss the claim as untimely was denied as it failed to demonstrate the date the claim accrued. To the extent defendant alternatively contended that the claim failed to meet the pleading requirements of Court of Claims Act § 11 (b) because it failed to sufficiently allege the date the claim accrued, the Court found that only the date the claim "arose", not the date it accrued, is required to be alleged, and the subject claim included this allegation..
Case information
| UID: | 2020-015-033 |
| Claimant(s): | MICHAEL SERVICE, DIN #11-A-0310, [an Inmate-Prisoner] |
| Claimant short name: | SERVICE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the only properly named defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127936 |
| Motion number(s): | M-95016 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Michael Service, Pro Se |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Thomas J. Reilly, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 27, 2020 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves for dismissal pursuant to CPLR 3211 (a) (2) on the grounds the claim served on May 18, 2016 was untimely under Court of Claims Act § 10 and the notice of intention to file a claim fails to meet the pleading requirements of Court of Claims Act § 11 (b).
Claimant, proceeding pro se, is an inmate in the custody of the Department of Corrections and Community Supervision. On May 17, 2016 claimant served defendant with both a notice of intention to file a claim and a claim. The claim, filed May 12, 2016, alleges a cause of action for wrongful confinement arising from the conduct of a prison disciplinary hearing in which the claimant was found guilty of violating several disciplinary rules. The claim alleges he was found guilty of all charges on December 17, 2015 and a penalty of 270 days confinement to the Special Housing Unit (SHU) was imposed. The claim states that "[t]he wrongful confinement . . . occurred, commencing on or about the date November 2nd, 2015, and was supposed to have concluded on the date [of] February 9th, 2016" when the disciplinary charges against him were administratively reversed (Defendant's Exhibit B, Claim, ¶ 4). Claimant alleges further, however, that notwithstanding the prison's timely receipt of notice of the reversal, he "served a significant amount of time [in the SHU] well beyond the date that the matter was reversed" (id. at ¶ 9). The date claimant was released from the SHU is not alleged in either the claim or the notice of intention to file a claim.
Court of Claims Act § 10 (3-b) requires that an intentional tort claim, such as one for wrongful confinement, be filed and served within 90 days following the accrual of the claim unless a notice of intention to file a claim is served within that time period "in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim." The State's waiver of immunity under Section 8 of the Court of Claims Act is conditioned upon claimant's compliance with the specific conditions to suit set forth in article II of the Court of Claims Act, which include the time limitations set forth in Court of Claims Act § 10 (Lyles v State of New York, 3 NY3d 396, 400 [2004]; Alston v State of New York, 97 NY2d 159 [2001]). As a result, "[f]ailure to comply with the statutory filing and service requirements deprives the Court of Claims of subject matter jurisdiction and compels dismissal of the claim" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see also Miranda v State of New York, 113 AD3d 943 [3d Dept 2014]; Encarnacion v State of New York, 112 AD3d 1003 [3d Dept 2013]).
Defendant bases its contention that the claim served May 17, 2016 is untimely solely on the date of accrual claimant, a pro se litigant, alleged in his claim. While claimant alleges the claim accrued on the date the Hearing Officer's determination of guilt was administratively reversed, February 9, 2016, the law quite clearly indicates that a cause of action for wrongful confinement does not accrue until a claimant is released from confinement since it is not until then that damages in such cases are reasonably ascertainable (Trammell v State of New York, 172 AD3d 1847 [3d Dept 2019]; Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]; Conner v State of New York, 268 AD2d 706, 707 [3d Dept 2000]). Insofar as claimant alleges he was not released from the SHU until sometime after the date of the administrative reversal, and the defendant failed to establish the date of his release from confinement, defendant failed to meet its burden of demonstrating the claim was untimely served.
Moreover, the Appellate Division, Third Department has repeatedly rejected the contention that wrongful confinement claims arising in the prison setting accrue upon exhaustion of administrative remedies (Briggs v State of N.Y. Dept. of Corr. & Community Supervision, 163 AD3d 1306 [3d Dept 2018], appeal dismissed 32 NY3d 1133 [2019], lv denied 33 NY3d 903 [2019]; Campos v State of New York, 139 AD3d 1276 [3d Dept 2016]).
As both the claim and the notice of intention were served on the same day (and the claim was filed before the notice of intention was served), the notice of intention served no purpose and was unnecessary (see Court of Claims Act § 10 [3-b]). Nevertheless, defendant's contention that the notice of intention fails to meet the pleading requirements of Court of Claims Act § 11 (b) because the date of accrual was only vaguely alleged as "February 9th, 2016, and thereafter" applies equally to the claim and will therefore be addressed (defendant's Exhibit A).
Court of Claims Act § 11 (b) does not require a claimant to allege the date the claim accrued; rather, it requires a claimant to allege "the time when and place where such claim arose." Although the date a claim accrues is often used interchangeably with the date a claim arose, the terms are not synonymous (Matter of Geneva Foundry Litig., 173 AD3d 1812, 1814 [4th Dept 2019]). The date the claim arose is the date of the " 'mishap' " (id. at 1813; quoting Heisler v State of New York, 78 AD2d 767, 768 [4th Dept 1980]) or other event giving rise to the claim (Matter of DeMairo v State of New York, 172 AD3d 856 [2d Dept 2019] [date of death]). In the wrongful confinement realm, this distinction makes a difference. While a claim for wrongful confinement arises on the date of the confinement (Green v State of New York, 65 Misc 3d 543 [Ct Cl, 2019]), it does not accrue until the confinement terminates (see e.g. Trammell, 172 AD3d 1847). Here, although the notice of intention completely fails to allege the date the claim arose, the claim alleges that the claimant's confinement commenced on November 2, 2015 (defendant's Exhibit B, Claim, ¶ 4). The date the claim arose having been properly alleged in the claim, it meets the pleading requirements of Court of Claims Act § 11 (b).
Based on the foregoing, defendant's motion is denied.
April 27, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of motion dated December 10, 2019;
2. Affirmation in support dated December 10, 2019, with Exhibits A-C;
3. Affidavit in opposition sworn to January 12, 2020.