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IN RE: Paul KAIRIS, Appellant, v. STATE of New York, Respondent.

Decided: January 16, 2014

Before: PETERS, P.J., ROSE, McCARTHY and GARRY, JJ. Paul Kairis, Alden, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondent.

Appeal from an order of the Court of Claims (DeBow, J.), entered May 16, 2012, which denied claimant's application pursuant to Court of Claims Act § 10(6) for permission to file a late claim.

Claimant, a prison inmate, was found guilty of violating various prison disciplinary rules in April 2007, and he served 90 days in the special housing unit. In August 2010, he served an additional 30 days of keeplock after being found guilty of violating certain prison disciplinary rules in another determination. Both determinations were administratively reversed and, in February 2012, claimant moved for leave to serve a late claim, asserting that he had been wrongfully confined on both occasions. The Court of Claims denied the motion, finding both claims to be barred by the applicable statute of limitations and meritless. Claimant now appeals.

The applicable statute of limitations for a claim of excessive confinement in the prison disciplinary context depends on whether the claim is predicated on intentional or negligent conduct (see Court of Claims Act § 10[3], [3–b]; Ramirez v. State of New York, 171 Misc.2d 677, 680–682 [1997]; cf. Vazquez v. State of New York, 23 Misc.3d 1101[A], 2009 N.Y. Slip Op 50527 [U], *2 n 2 [2009], affd 77 AD3d 1229 [2010] ). Such a claim accrues “upon a claimant's release from confinement” (Davis v. State of New York, 89 AD3d 1287, 1287 [2011] ).

Here, claimant's contentions regarding his 2007 confinement are untimely under either theory and, even assuming that the cause of action relating to the 2010 confinement is subject to the two-year statute of limitations, the Court of Claims appropriately found that the claim lacks merit due to claimant's failure to allege “that the correctional facility employees responsible for his discipline acted in excess of their authority or in violation of any relevant rules or regulations” (Loret v. State of New York, 106 AD3d 1159, 1159 [2013], lv denied 22 NY3d 852 [2013]; see Arteaga v. State of New York, 72 N.Y.2d 212, 219 [1988]; Varela v. State of New York, 283 A.D.2d 841, 841 [2001] ).

ORDERED that the order is affirmed, without costs.


PETERS, P.J., McCARTHY and GARRY, JJ., concur.

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