Miranda v State of New York

[*1] Miranda v State of New York 2012 NY Slip Op 52505(U) Decided on June 11, 2012 Ct Cl Bruening, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 11, 2012
Ct Cl

Javier Miranda Claimant(s)

against

The State of New York, Defendant(s).



120682-A



JAVIER MIRANDA, Pro Se

Defendant's attorney:HON. ERIC T. SCHNEIDERMAN

Attorney General of the State of New York

By:Michael T. Krenrich, Esq.

Assistant Attorney General

Glen T. Bruening, J.

Recitation:

Claimant Javier Miranda seeks damages resulting from his alleged wrongful confinement and violation of his constitutional rights while an inmate at Eastern Correctional Facility in Napanoch, Ulster County, under the supervision of the Department of Correctional Services [*2]("DOCS").[FN1] Specifically, Claimant contends that he was wrongfully confined to the Special Housing Unit (SHU) from November 12, 2008 until January 11, 2009 after having been found guilty of violating a prison disciplinary rule. Thereafter, while Claimant's CPLR Article 78 proceeding seeking to annul that determination was pending, the guilty determination was administratively reversed. Defendant now moves seeking dismissal of the Claim [FN2] based on Claimant's failure to comply with the filing and service requirements set forth in the Court of Claims Act §§ 10 and 11 and asserting that the Claim fails to state a valid cause of action. Claimant opposes the motion.

Text of the decision:

Here, the submissions on the motion establish that, on November 12, 2008, Claimant was served with a misbehavior report [FN3] charging him with violating certain disciplinary rules, including the misuse of State property, tampering with State property and possessing personal staff information. On November 12, 2008, Claimant was placed in the SHU. A Superintendent's disciplinary hearing commenced on November 18, 2008 and, on November 24, 2008, Claimant was found guilty of tampering with State property. He was issued 60 days confinement in the SHU, to commence on November 12, 2008 and end on January 11, 2009, among other penalties.[FN4] On January 11, 2009, during the pendency of Claimant's administrative appeal of the hearing disposition, Claimant was released from the SHU. On January 27, 2009, the hearing disposition was administratively affirmed, and Claimant thereafter commenced a CPLR Article 78 proceeding seeking to reverse the determination and to have his record expunged. On February 3, 2011, during the pendency of the Article 78 proceeding, the hearing disposition was administratively reversed without explanation and all references to the determination were expunged from Claimant's record. On May 26, 2011, the Article 78 proceeding was rendered moot (see Matter of Miranda v Bezio, 84 AD3d 1661, 1661 [3d Dept 2011]). A Notice of Intention to File a Claim was served on the Attorney General by certified mail, return receipt [*3]requested on July 29, 2011 (see Affirmation of Michael T. Krenrich, Esq., paragraph 11; Claim, Exhibit 12). On December 12, 2011, the Claim was served on the Attorney General (see Affirmation of Michael T. Krenrich, Esq., paragraph 11, Exhibit A).

Whether characterized as a Claim for an intentional tort or an unintentional tort, Court of Claims Act § 11 (a) (i) mandates that a copy of the Claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the applicable time period provided in Section 10 of the Court of Claims Act. Court of Claims Act § 10 (3) mandates that "[a] claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim." Court of Claims Act § 10 (3-b) mandates that "[a] claim to recover damages for injuries to property or for personal injuries caused by the intentional tort of an officer or employee of the state while acting as such officer or employee . . . shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim." Failure to comply with these statutory filing and service requirements "deprives the Court of Claims of subject matter jurisdiction and compels dismissal of the claim" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]). However, any objection or defense based on a Claimant's failure to comply with the time limitations or the manner of service requirements is waived unless specifically raised in the answer or in a pre-answer dismissal motion (see Court of Claims Act § 11[c] [i], [ii]).

In support of its Motion to Dismiss the Claim, defense counsel asserts that Claimant's failure to timely serve a Notice of Intention to File a Claim or to timely file and properly serve a Claim on the Attorney General as required by the Court of Claims Act divests this Court of personal jurisdiction over the Defendant and subject matter jurisdiction over the Claim. Defendant argues that since the Claim accrued on January 11, 2009, the 90-day period within which Claimant could serve his Notice of Intention, or instead file and serve his Claim, expired on April 11, 2009. Defendant also offers a photocopy of the mailing envelope used to mail the Claim to the Attorney General, which bears a stamp indicating it was mailed by "PRIORITY MAIL" (Affirmation of Michael T. Krenrich, Esq., Exhibit A), together with a copy of an affidavit of service indicating that a copy of the Claim was mailed to the Attorney General by first-class mail (see Id.). Defendant also argues that the actions of DOCS in confining Claimant to the SHU are absolutely immune and that, to the extent that the Claim seeks redress for a violation of his constitutional rights, such a remedy is not available in the Court of Claims.

In opposition to the motion, Claimant asserts that the Notice of Intention was timely served in that it was received within 90 days after the CPLR Article 78 proceeding was dismissed and after he exhausted all of his administrative remedies. Claimant concedes that the Claim was served on the Attorney General by Priority Mail (see Affidavit of Javier Miranda, paragraphs 16 [*4]and 17). Claimant further argues that Defendant is not immune from liability because DOCS failed to act in compliance with governing regulations, specifically, Title 7 of the NYCRR §§ 250-254 which, according to Claimant, was the basis for the reversal of the disciplinary determination.

Initially, the Court finds that Defendant preserved its objection to the timeliness of filing and manner of service of the Claim in its pre-answer Motion to Dismiss (see Court of Claims Act § 11 [c]). Furthermore, in light of the proof before it, the Court concludes that Claimant served his Claim on the Attorney General by Priority Mail, and thereby failed to comply with Court of Claims Act § 11 (a) (i) (see Femminella v State of New York, 71 AD3d 1319, 1320 [3d Dept 2010]). This deprived the Court of subject matter jurisdiction (see Spaight v State of New York, 91 AD3d 995, 995 [3d Dept 2012]). Nevertheless, even if he had properly served the Claim on the Attorney General in the manner required by the Act, the Court concludes that the Claim must be dismissed as untimely. Contrary to Claimant's argument, "[d]amages arising from wrongful confinement . . . are reasonably ascertainable upon a claimant's release from confinement and, therefore, it is on that date that the claimant's cause of action accrues" (Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011]). Accordingly, as it is undisputed that Claimant was released from the SHU on January 11, 2009, Claimant had until April 11, 2009 to either serve a Notice of Intention on the Attorney General or to file and serve a Claim on the Attorney General. In light of the uncontroverted evidence, service of the Notice of Intention or the Claim was not completed within 90 days after accrual of the Claim, making both untimely, thereby divesting the Court of subject matter jurisdiction over the Claim (see Alston v State of New York, 97 NY2d 159, 163 [2001]). In so deciding, the Court does not reach the merits of whether Claimant was wrongfully confined or whether the State is immune from liability upon application of the principles established by the Court of Appeals in Arteaga v State of New York (72 NY2d 212, 214 [1988]). In any event, to the extent the Claim can be read to assert a violation of the New York State Constitution, such a Claim is not viable where, as here, Claimant had an adequate alternative remedy in the form of a CPLR Article 78 proceeding (see Deleon v State of New York, 64 AD3d 840, 840-841 [3d Dept 2009], lv denied 13 NY3d 712 [2009]).

Accordingly, Defendant's Motion No. M-81015 is granted and the Claim is dismissed.

Appendices:

The following papers were read and considered by the Court:

Affidavit in Support of Claim, filed December 12, 2011, with Exhibits 1-12;

Defendant's Notice of Motion, filed January 20, 2012;

Unsigned Affirmation of Michael T. Krenrich, Esq., dated January 19, 2012, with Exhibit A;

Affidavit of Javier Miranda, sworn to on February 16, 2012;

Reply Affirmation of Michael T. Krenrich, Esq., dated February 27, 2012;

Reply Affidavit of Javier Miranda, sworn to on March 13, 2012. Footnotes

Footnote 1: DOCS is now known as the Department of Corrections and Community Supervision (DOCCS) (see L 2011, c 62, subpt A, § 4, eff. March 31, 2011). Inasmuch as the Claim makes allegations of wrongful confinement that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.

Footnote 2: The Court will treat the document denominated an "Affidavit in Support of Claim" as a Claim because it satisfies the pleading requirements of Court of Claims Act § 11 (b) and is well supported with 12 Exhibits.

Footnote 3: At the disciplinary hearing, Claimant stated that he was served with a misbehavior report on November 13, 2008.

Footnote 4: The hearing disposition sheet erroneously lists the penalty end date as January 11, 2008 rather than the correct date of January 11, 2009 (see Claim, Exhibit 3).