KAYE v. STATE (2023)

Recitation:

The following papers numbered 1-2 were read and considered by the Court on claimant's late claim application:

Notice of Motion, Claimant's Supporting Affidavit and Exhibits 1

Attorneys Affirmation in Opposition and Exhibits 2

Filed Papers: Claim No. 138458

Claimant brings this application for leave to serve and file a late claim. Attached to his motion papers is a claim which is exactly the same as Claim No. 138458 that was served upon the State on November 16, 2022 and filed with the Court on November 25, 2022 (Attorney's Affirmation in Opposition, ¶ 9; State's Ex. B; Filed Claim).¹ The State served a Verified Answer to the Claim on December 14, 2022 (State's Ex. C).

The Court deems the claim attached to claimant's application as the proposed claim for purposes of claimant's late claim application. The proposed claim alleges facts that occurred during claimant's incarceration at Eastern NY Correctional Facility on October 19, 20, 21, 28, 29, and 31 of 2021 as a basis for the allegations of intentional torts, such as assault and battery, and violations of claimant's federal constitutional rights (proposed claim, ¶¶ 5, 32, 33, 34, 36, 37, 39, 41, 44, 45, 48, 51).²

The State opposes claimant's late claim application on the ground that the Court does not have jurisdiction over the motion because it was not timely brought prior to the expiration of the one-year statute of limitations for the intentional torts alleged in the proposed claim (Court of Claims Act § 10 [6]).³

Court of Claims Act § 10 (6) provides that a late claim application must be brought “before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules.” The failure to bring a late claim application before the expiration of the relevant statute of limitations precludes the Court from considering the application because such failure is a jurisdictional defect and the Court is without discretionary power to grant nunc pro tunc relief (see Matter of Miller v State of New York, 283 AD2d 830 [3d Dept 2001]; Bergmann v State of NewYork, 281 AD2d 731, 733 [3d Dept 2001]).

Here, the Court finds that claimant's application for late claim relief is untimely as to the causes of action of intentional torts which accrued on October 19, 20, 21, 28, 29, and 31 of 2021. In this vein, the instant late claim application was not filed with the Court prior to the expiration of the applicable one-year statute of limitations for alleged intentional torts which accrued in October of 2021 (Court of Claims Act § 10 [3-b]; CPLR 215 [3]).

Additionally, as to the allegations of the proposed claim which assert federal constitutional violations, this Court does not have jurisdiction over such claims (see Lyles v State of New York, 3 NY3d 396, 398 [2004]; Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]).

Accordingly, claimant's late claim application is DENIED.

FOOTNOTES

1.   Claimant also served the State with a notice of intention on Nov. 24, 2021 (Attorney's Affirmation in Opposition, ¶ 3).

2.   Paragraph two of the proposed claim alleges that the incidents which are a basis of the proposed claim occurred between October 11, 2022 and October 31, 2022. However, this is an apparent typographical error as the dates of the incidents are set forth in the remaining paragraphs of the proposed claim as occurring between October 11, 2021 and October 31, 2021 (proposed claim ¶¶ 5, 32, 33, 34, 36, 37, 39, 41, 44, 45, 48, 51). Additionally, the proposed claim alleges that the notice of intention was served upon the Office of the Attorney General by placing it in the mail on November 18, 2021, which is prior to the 2022 dates set forth in paragraph two of the proposed claim (id. at 3, 51).

3.   The Court notes that the State also opposes claimant's motion for leave to treat his notice of intention as a claim. However, claimant's motion seeking such relief is not presently before the Court and is the subject of claimant's outstanding Motion No. M-99048. Accordingly, the Court will not consider the State's arguments which are addressed to the State's opposition to claimant's Motion No. M-99048.

Walter Rivera, J.