Opinion
No. 123827.
11-18-2014
Shaun WRAY, Claimant, v. STATE of New York, Defendant.
Harvis Wright & Fett LLP, by Gabriel P. Harvis, Esq. and Jeffrey A. Rothman, Esq., for Claimant. Eric T. Schneiderman, Attorney General, by Joseph L. Paterno, AAG and Robert J. Schwerdt, AAG, for Defendant.
Harvis Wright & Fett LLP, by Gabriel P. Harvis, Esq. and Jeffrey A. Rothman, Esq., for Claimant.
Eric T. Schneiderman, Attorney General, by Joseph L. Paterno, AAG and Robert J. Schwerdt, AAG, for Defendant.
Opinion
ALAN C. MARIN, J.
The defendant State of New York has moved to dismiss the claim of Shaun Wray as untimely. Mr. Wray's claim arises from a series of encounters with the criminal justice system beginning with his plea on September 8, 2008. According to the claim, such was a violation, but entered as a misdemeanor because of a clerical error by a court employee. The latter may also have been error because claimant's age at the time made him eligible for Youthful Offender status.
On April 4, 2009, Wray was arrested on a misdemeanor weapons charge (Penal Law § 265.01 ), which was upgraded to a felony because court records listed the 2008 plea as a misdemeanor. Claimant states that he was unaware of such erroneous upgrade, pled to the felony and served eight months in the City of New York's Rikers Island facility.
On July 20, 2011, claimant was arrested on larceny and related charges. The claim states: “Based on claimant's 2009 felony conviction, an Immigration Hold was issued by the [federal authorities] and claimant, a Green Card holder and legal resident ... was detained for approximately one and [a] half years ...” and remained in custody even though the felony charges were dismissed (claim, ¶ 10).
On March 29, 2013, while still held by immigration authorities, Wray's lawyer investigated and learned that the original 2008 plea should have resulted in a non-criminal Youthful Offender disposition. Consequently on May 1, 2013, his 2009 felony conviction was vacated and eight days later, Mr. Wray was released from federal custody.
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Defendant argues that claimant was untimely in filing his notice of intention to file a claim on June 21, 2013, because Wray's claim accrued on the date of the recording error, nearly five years before. Claimant responds that the claim accrued on March 29, 2013 when the underlying error was discovered (thus the notice of intention was timely filed within 90 days as per § 10(3) of the Court of Claims Act ), contending that a claim accrues when damages are “reasonably ascertainable,” citing Flushing Natl. Bank v. State of New York, 210 A.D.2d 294, 295 (2d Dept 1994), lv denied 86 N.Y.2d 706 (1995), which involved the failure to docket the extension of a lien against real property.
Claimant cites Richard A. Hutchens CC, L.L.C. v. State of New York, 59 AD3d 766 (3d Dept 2009), lv denied 12 NY3d 712 (2009). Hutchens, which related to the termination of an option in an agreement for residential development, is inapposite.
A claim or action accrues when the act or omission causes injury. The exception for accruals that are tied to the date of discovery are those that cannot be determined because of their nature and are granted explicitly by statute. This includes the belated discovery of injury from exposure to a toxic substance or a foreign object left inside a patient during surgery (Matter of Barresi v. State of New York, 232 A.D.2d 962 [3d Dept 1996] ; CPLR §§ 214–a, 214–b and 214–c ). Such is not the case for Mr. Wray; his claim accrued no later than April 4, 2009.
Moreover, a ministerial error by the State (or a municipality) acting in its governmental capacity is immune from suit unless a special relationship running to the individual, rather than the public at large, can be shown (Valdez v. City of New York, 18 NY3d 69 [2011] ; Holdman v. Office of Court Admin., 118 AD3d 447 [1st Dept 2014] ). No special relationship obtains here under the standard set forth in Cuffy v. City of New York, 69 N.Y.2d 255 [1987] ).
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In view of the foregoing, and having reviewed the parties' submissions, IT IS ORDERED that defendant's motion no. M–84815 is granted and the claim of Shaun Wray (No. 123827) is dismissed.
The following papers were reviewed: From defendant: a Notice of Motion with an Affirmation in Support; and an Affirmation in Reply. From claimant: an Affirmation in Opposition. In addition, oral argument was held on September 17, 2014.
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