Luis Rodriguez-Flamenco, Claimant, v. The State of New York, Defendant. (2024)

Defendant, the State of New York, moves by Notice of Motion dated and filed with the Clerk of the Court on February 2, 2024, pursuant to CPLR §§ 3211 (a) (2) and (8), and Court of Claims Act §§ 10 (3-b) and 11, dismissing the claim, due to lack of personal and subject matter jurisdiction due to untimely service. Claimant filed an "Affidavit in Support in Response to the Defendant's Motion to Dismiss" on March 8, 2024.

Now, having carefully reviewed the papers and exhibits filed, Defendant's motion is granted for the reasons more specifically set forth herein below.

Relevant Factual Background and Parties' Relevant Arguments

A Notice of Intention to file a Claim (hereinafter, "NI") was sent by certified mail and was received by the Office of the Attorney General (hereinafter the "OAG") on December 2, 2021, alleging that "[Claimant] was given a misbehavior report on August 17, 2021 [and] was found guilty on September 3, 2021. After an appeal to the Superintendent Mark Miller at Green Haven C.F., [his] record was expunged due to reversal. [He is] making this claim due to the wrongful confinement of [his] person."

Thereafter, a claim was sent by certified mail, return receipt requested and was received by the OAG on August 4, 2022, alleging negligence, wrongful confinement and malicious prosecution committed by employees at Auburn Correctional Facility (hereinafter "Auburn") on August 16, 2021(hereinafter, the "Claim"). On December 14, 2022, the OAG served Claimant with a copy of its Verified Answer, asserting 8 affirmative defenses. Specifically, in its first affirmative defense, Defendant asserted that the NI is defective because it was not served in a timely manner as required by Court of Claims Act § 10(3). In addition, in its seventh affirmative defense, Defendant contends that the NI is defective due to its failure to include an adequate description of the location of the incident alleged therein and therefore, is insufficient to extend the time for filing and serving the Claim as required by Court of Claims Act § 11.

Defendant's counsel argues the NI is defective, as it does not comply with Court of Claims Act § 11(b) because it fails to state the time and place in which the claim arose, and it is untimely in that it was served beyond the 90-day statutory period and did not extend the time for filing and serving a claim pursuant to § 10(3) of the Court of Claims Act. Therefore, Defendant argues the Claim lacks specificity and is untimely and should be dismissed.

In opposition to Defendant's motion, Claimant argues that Court of Claims Act § 11(b) does not require that the notice requirements of the time and place in the NI be stated with " 'absolute exactness,' but simply a statement made with 'sufficient definiteness' to enable the State to be able to investigate the claims promptly and to ascertain its liability under the circumstances." Claimant goes on to cite Shabat v State, 215 AD3d 1023 [2d Dept 2023], stating that documentary attachments may be annexed to the NI to provide a sufficient description of the time and place of the incident. Claimant contends that "although the [NI] did not allege the incident to have occurred at [Auburn], the [NI] was nevertheless annexed to the Reversal Order dated November 2, 2021, which contains the details that the State needed to pursue its own investigation." He contends that the Reversal Order contains the following: date of the hearing, identity of official presiding over hearing, place where hearing was held, tape number of the recorded disciplinary proceedings and the date of the incident.

Claimant contends in response to Defendant's untimeliness argument pursuant to Court of Claims Act § 10(3-b) that Defendant's arguments are "flawed", and Claimant provided sufficient details in the NI to enable the State to "conduct an investigation into the place of the incident as having occurred at the [Auburn]." Claimant argues that he served the Defendant with the NI, which was received to the OAG on December 2, 2021, and that the NI set forth the date of accrual, October 3, 2021, and the cause of action for wrongful confinement. Claimant goes on to argue that the NI was served "shortly after the misbehavior report that led to Claimant's wrongful confinement was reversed on November 2, 2021. This service was well within the service requirements of ninety (90) days." Claimant contends that based upon the foregoing, the NI was timely served and therefore, the Claim was timely served on August 4, 2022, "well within the one-year extension after the accrual date of such claim which was on October 3, 2021."

Decision and Order

Claimant's Claim must be dismissed based upon the NI's failure to comply with Court of Claims Act § 11(b), which requires that a notice of intention or a claim "shall state the time when and place where such claim arose [and] the nature of same." Whether a claim is sufficient under Section 11(b) is subject to strict scrutiny as sections 10 and 11 of the Court of Claims Act are jurisdictional (see Lepkowski v State of New York, 1 NY3d 201, 207 [2003]; see also Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]) and not waivable.

It is well established that the failure to satisfy the substantive pleading requirements of Court of Claims Act § 11(b) is a jurisdictional defect that requires dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 280-281[2007]; Lepkowski at 206-207 [2003]; Czynski v State of New York, 53 AD3d 881, 882-883 [3d Dept 2008], lv denied 11 NY3d 715 [2009]).

Here, the NI fails to state the time when and the place where the claim arose. In addition, Claimant's argument that the Reversal Order dated November 2, 2021, annexed to the NI, satisfied the jurisdiction requirements in that it states the time and place of the incident, is insufficient to satisfy the substantive pleading requirements of Court of Claims Act § 11(b) as it must be stated within the four corners of the NI. Assuming, arguendo, that the Court were to accept Claimant's argument, the Reversal Order fails to state the time and place where the incident occurred, rather it states the date of the incident, and the date and location of the superintendent's hearing. Therefore, the NI fails to satisfy the pleading requirements of Court of Claims Act § 11(b) and is insufficient to extend the time to file the Claim.

The Court notes that the NI fails to state any causes of action sounding in negligence, and malicious prosecution which was alleged in the Claim. Based upon Claimant's failure to state any cognizable causes of action for negligence and malicious prosecution in the NI, it fails to satisfy the pleading requirements of Court of Claims Act § 11(b) and is insufficient to extend the time to file the Claim.

Court of Claims Act § 10(3-b) requires that a claim to recover damages for wrongful confinement "shall be filed" and served upon the OAG within 90 days of the accrual of the cause of action, unless a notice of intention is served within that time, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim.

Pursuant to the Reversal Order, the disciplinary hearing was held on September 3, 2021, and the disposition rendered thereafter was administratively reversed on November 2, 2021. Although the NI alleges that date of accrual of the Claim is October 3, 2021, it does not allege the date that Claimant was initially confined or the date that Claimant was released from confinement, and thus the Court is unable to infer the date on which this wrongful confinement claim accrued (see Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011] [a wrongful confinement claim accrues on the date the claimant is released from the allegedly wrongful confinement]).

Assuming, therefore, that the earliest date on which Claimant could have been released from the Special Housing Unit (hereinafter, the "SHU") (assuming that the sentence rendered after the disciplinary hearing was Claimant being sent to the SHU) was October 3, 2021 (based on Claimant's allegation in the NI), he had 90 days from that date to file and serve this wrongful confinement claim, until January 1, 2022, since the NI did not extend the time to file the Claim because it failed to comply with the pleading requirements set forth in Court of Claims Act § 11(b), as stated more fully herein above. The Claim herein was not filed with the Court until June 28, 2022, and therefore, is untimely.

Accordingly, it is hereby

ORDERED, that Defendant's motion (M-100457) is GRANTED and Claim No. 137924 is hereby DISMISSED; and it is further

ORDERED, that the Clerk is directed to close the file.

Dated: July 29, 2024

Hauppauge, New York

HON. LINDA K. MEJIAS-GLOVER,

Judge of the Court of Claims

Papers Read on this Motion:

1. Notice of Motion to Dismiss, Affirmation of Ray A. Kyles, AAG in Support of Defendant's Motion to Dismiss, Exhibits Annexed

2. Affidavit in Support of Response to Motion

Linda K. Mejias-Glover, J.