ROSS v. STATE (2023)

MEMORANDUM AND ORDER

Appeal from an order of the Court of Claims (James H. Ferreira, J.), entered April 4, 2022, which granted defendant's motion to dismiss the claim.

On August 25, 2021, claimant, an incarcerated individual at the Clinton Correctional Facility, was allegedly attacked by an unknown person, resulting in certain injuries.  As a result, in November 2021, claimant brought this claim against defendant, asserting, among other things, negligent failure to maintain a safe environment and negligent hiring and supervision of its employees.  Defendant moved pre-answer to dismiss the claim for lack of subject matter jurisdiction on the basis that claimant did not timely serve the claim.  The Court of Claims granted defendant's motion, prompting this appeal.

We affirm.  “[P]ursuant to the Court of Claims Act, a claim or notice of intention to file a claim to recover damages for personal injuries caused by the negligence of an officer or employee of the State must be filed and served within 90 days after accrual of the cause of action” (Matter of Barnes v. State of New York, 158 A.D.3d 961, 962, 72 N.Y.S.3d 603 [3d Dept. 2018];  see Court of Claims Act § 10[3]).  “A claim accrues for purposes of the Court of Claims Act when damages are reasonably ascertainable” (Scott v. State of New York, 194 A.D.3d 1216, 1217, 149 N.Y.S.3d 297 [3d Dept. 2021] [internal quotation marks, brackets and citations omitted], appeal dismissed & lv. denied 37 N.Y.3d 1233, 164 N.Y.S.3d 68, 184 N.E.3d 889 [2022]).  “Because the timeliness requirements imposed by the Court of Claims Act have jurisdictional implications, they must be strictly construed” (Scott v. State of New York, 137 A.D.3d 1434, 1434–1435, 27 N.Y.S.3d 731 [3d Dept. 2016] [citations omitted], lv denied 27 N.Y.3d 911, 2016 WL 3553595 [2016];  see generally Lyles v. State of New York, 3 N.Y.3d 396, 400, 787 N.Y.S.2d 216, 820 N.E.2d 860 [2004]).

It is undisputed that claimant's injury occurred on August 25, 2021, and that the claim was served upon the Office of the Attorney General on November 24, 2021.¹  In calculating whether service was accomplished within the statutory 90–day period, general principles of statutory construction require excluding the date of injury and beginning the count on the following day (see General Construction Law § 20;  Turner v. City of New York, 94 A.D.3d 635, 636, 943 N.Y.S.2d 454 [1st Dept. 2012]).  Inasmuch as the first day of the 90–day period was August 26, 2021, and the 90th day was November 23, 2021, the Court of Claims properly determined that service one day later was untimely, thereby divesting it of subject matter jurisdiction (see Encarnacion v. State of New York, 112 A.D.3d 1003, 1004, 975 N.Y.S.2d 917 [3d Dept. 2013];  Perry v. State of New York, 64 A.D.2d 799, 800, 408 N.Y.S.2d 154 [3d Dept. 1978], lv denied 46 N.Y.2d 710, 414 N.Y.S.2d 1028, 387 N.E.2d 1221 [1979]).  To the extent that claimant alleges that the limitations period should be tolled by the continuing wrong doctrine, this argument was not raised before the Court of Claims and is therefore unpreserved (see DiCenzo v. Mone, 200 A.D.3d 1162, 1166, 159 N.Y.S.3d 529 [3d Dept. 2021];  Matter of Neville v. Magazine Distribs., Inc., 61 A.D.3d 1165, 1166, 876 N.Y.S.2d 249 [3d Dept. 2009], lv denied 12 N.Y.3d 712, 2009 WL 1544043 [2009]).  In any event, we note that nothing in the record supports the application of this doctrine.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   Claimant did not serve a notice of intention to file a claim, which would have permitted him to file and serve his claim within two years after it accrued (see Court of Claims Act § 10[3]).

Ceresia, J.

Garry, P.J., Egan Jr., Clark and Reynolds Fitzgerald, JJ., concur.