BASKERVILLE v. STATE (2000)

Order, Court of Claims, New York County (S. Michael Nadel, J.), entered June 22, 1999, which, inter alia, granted defendant's motion to dismiss the claim as time-barred, unanimously affirmed, without costs.

The claim alleges that the State was negligent in failing to notify claimant of the denial of his habeas corpus application in August 1990 until September 1997, when he was advised thereof in a letter from a court clerk, and that such negligence caused claimant damages by impairing his ability to appeal, and thereby prolonging his imprisonment.   The claim was properly dismissed as barred by the three-year Statute of Limitations (Court of Claims Act § 12 [2];  CPLR 214[5] ) upon a finding that, assuming claimant was under no obligation to discover the existence of the order himself, the State, acting through an Assistant Attorney General who was representing the Justice then presiding in the part of the Supreme Court where claimant had brought his habeas application, in fact did advise claimant of the denial of his habeas application, in September 1991, in response to claimant's application for a writ of mandamus compelling the habeas court to render a decision on his habeas application (Matter of Baskerville v. Adlerberg, 176 A.D.2d 1251, 574 N.Y.S.2d 428).   It was then, at the latest, that claimant had notice of the negligent delay he alleges herein, and his cause of action accrued (see, Flushing Natl. Bank v. State of New York, 210 A.D.2d 294, 621 N.Y.S.2d 83, lv. denied 86 N.Y.2d 706, 632 N.Y.S.2d 500, 656 N.E.2d 599).   We reject claimant's contention that his claim did not accrue until November 1998, when he first received a copy of the 1990 order upon receipt of defendant's motion herein, which had it annexed as an exhibit.   The injury alleged, impairment of claimant's right to appeal the 1990 order caused by defendant's failure to serve claimant with a copy thereof, was first ascertainable when claimant was advised of the existence of the order, not when he was provided with a copy of it.

MEMORANDUM DECISION.