State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 29, 2016 522012 

________________________________

WILLIAM STEELE,

Respondent,

v MEMORANDUM AND ORDER

STATE OF NEW YORK,

Appellant.

________________________________

Calendar Date: November 21, 2016

Before: McCarthy, J.P., Lynch, Rose, Clark and Aarons, JJ.

__________

Eric T. Schneiderman, Attorney General, Albany (Robert M.

Goldfarb of counsel), for appellant.

William Steele, Dannemora, respondent pro se.

__________

Lynch, J.

Appeal from a judgment of the Court of Claims (Mignano,

J.), entered August 12, 2015, upon a decision of the court in

favor of claimant.

Claimant, an inmate, was found to have violated certain

disciplinary rules for assaulting his cellmate and was confined

to the special housing unit (hereinafter SHU) for five months. 

He was released from SHU on May 27, 2012. Claimant challenged

the disciplinary determination through a CPLR article 78

proceeding, contending that the Hearing Officer failed to

properly inquire as to the cellmate's refusal to testify (see

generally Matter of Cortorreal v Annucci, 123 AD3d 1337 [2014],

revd 28 NY3d 54 [2016]). Supreme Court agreed and annulled the

determination in September 2012.
-2- 522012 

Claimant then filed this claim, dated October 29, 2012 and

served on November 19, 2012, seeking monetary damages for his

wrongful confinement in the SHU. In its answer, defendant raised

subject matter jurisdiction as a defense, contending that

claimant failed to serve the claim within 90 days of accrual, as

required by Court of Claims Act §§ 10 (3) and 11 (c). In denying

claimant's subsequent motion for summary judgment, the Court of

Claims declined to strike this defense, finding the record

inadequate. In so doing, the court further instructed that any

motions must be made by September 16, 2013. Notably, claimant

did not alternatively move for permission to file a late claim

(see Court of Claims Act § 10 [6]). 

At the commencement of the trial on December 18, 2014,

defendant orally moved to dismiss the claim for lack of subject

matter jurisdiction. The Court of Claims reserved decision,

advising the issue would be addressed posttrial. Following

trial, the court denied defendant's motion to dismiss, finding

that defendant waived the defense by failing to comply with its

stated motion deadline. The court then ruled in claimant's favor

and awarded $1,540 in damages. Defendant appeals.

We reverse. This Court has determined that a claim for

wrongful confinement accrues upon a claimant's release from the

SHU (see Campos v State of New York, 139 AD3d 1276, 1277 [2016];

Davis v State of New York, 89 AD3d 1287, 1287 [2011]). On that

measure, the claim was clearly untimely as the 90-day period in

which to serve a claim expired on August 27, 2012. A failure to

comply with the time provisions of Court of Claims Act § 10

divests the Court of Claims of subject matter jurisdiction (see

Lyles v State of New York, 3 NY3d 396, 400 [2004]; Baysah v State

of New York, 134 AD3d 1304, 1305 [2015]). Statutorily, such a

failure may be waived where the defense is neither raised in a

pre-answer motion to dismiss or in the responsive pleading (see

Court of Claims Act § 11 [c]). Here, as indicated, defendant

duly preserved the defense in its answer (see City of New York v

State of New York, 46 AD3d 1168, 1170 [2007], lv denied 10 NY3d

705 [2008]). Since defendant has not otherwise waived its

sovereign immunity, the court lacked authority to impose a

pretrial motion deadline precluding this defense (see Court of

Claims Act § 8; Lyles v State of New York, 3 NY3d at 400-401). 
-3- 522012 

As such, claimant's failure to timely serve the claim deprived

the Court of Claims of subject matter jurisdiction, and the claim

must be dismissed.

McCarthy, J.P., Rose, Clark and Aarons, JJ., concur.

ORDERED that the judgment is reversed, on the law, without

costs, and claim dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court