Claim No. 112242, Motion No. M-71952


                                      Case Information

UID:                                2006-041-002
Claimant(s):                        JESSE McKINLEY CARTER JR (c),
                                    SECURED PARTY
Claimant short name:                McKINLEY CARTER JR

Footnote (claimant name) :
Defendant(s):                       KAREN ARCHER, TAX COMPLIANCE AGENT III,
                                    NEW YORK STATE DEPARTMENT OF TAXATION & FINANCE
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):

Claim number(s):                    112242

Motion number(s):                   M-71952

Cross-motion number(s):

Judge:                              FRANK P. MILANO

Claimant’s attorney:                Jesse McKinley Carter Jr (c)
                                    Pro Se
Defendant’s attorney:               Hon. Eliot Spitzer, New York State Attorney General
                                    By: Kathleen M. Arnold, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:                     August 28, 2006

City:                               Albany

Official citation:
Appellate results:
See also (multicaptioned case)

                 This claim and motion were transferred to the Honorable Frank P. Milano by
Order of the Presiding Judge of the Court of Claims, the Honorable Richard E. Sise, on August
11, 2006, pursuant to § 206.3 of the Uniform Rules for the Court of Claims.
         Defendants move pursuant to CPLR Rule 3211 to dismiss the claim on the grounds that
the Court lacks jurisdiction of the claim for the following reasons: The claim was not timely
filed; the Court lacks subject matter jurisdiction of the claim; and the claim fails to state a cause
of action. Claimant opposes the motion and requests that the Court grant the claim because the
“[d]efendants are in [a]greement by default stare decisis.”
         Defendants‟ motion to dismiss is granted.
         The claim was filed on April 21, 2006 and served on the Attorney General on May 26,
2006. The claim states an accrual date of September 5, 2003 “[c]ontinuing to the present date of
[c]laim.” Claimant asserts that he has been damaged in the sum of $500,000.00 “as set out in the
standard [c]laim form, Form 95, Notice of Tort, Commercial Affidavit of Truth, Affidavit of
Negative Averment with Affidavit in Support of Exhibits,” all of which are attached to the claim.
         The Court has reviewed the claim and finds it “prolix, rambling and very difficult to
decipher” (Jacobs v The State of New York [Ct Cl, Minarik, J., UID #2004-031-054])1. It
appears that claimant is challenging a child support enforcement levy allegedly filed by a tax
compliance agent employed by the New York State Department of Taxation and Finance against
claimant‟s father‟s life insurance policy for claimant‟s unpaid child support arrears of
         The levy was allegedly filed on August 18, 2003. On September 5, 2003, claimant
allegedly notified defendants that the life insurance policy was exempt from levy and demanded
that defendants “release the order(s) of the Court to Claimant immediately.” On June 17, 2004
claimant allegedly sent to defendants an “Actual and Constructive Notice by Affidavit &
Demand for full Disclosure and Proof of Claim, with attached Debt Collector Statement.” On
August 3, 2004, claimant was allegedly advised by defendants by a letter that they were “unable
to process” claimant‟s documents and were returning the various documents sent by claimant.
Claimant allegedly sent further documents to defendants on August 7, 2004 and October 31,
2004, apparently without any response from defendants.
         Claimant alleges that on the basis of the above-described transactions, defendants are in
default by “Tacit Agreement.” He alleges violation of his federal constitutional rights based upon
defendants‟ “violation of due process, fraud, threat, duress, coercion, harassment, detriment of
character and emotional, physical and mental anguish.”
         The claim alleges tortious acts by defendants and sets forth an accrual date of September
5, 2003. The facts alleged by claimant suggest an accrual date of August 18, 2003, but in either
case the claim was not timely filed and served.
         Pursuant to Court of Claims Act § 10(3):
         “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 ....”
         Courts have consistently held that “[a]s a condition of the State's limited waiver of
sovereign immunity, those requirements are strictly construed and a failure to comply therewith
is a jurisdictional defect compelling the dismissal of the claim” (Welch v State of New York, 286
AD2d 496, 497-498 [3d Dept 2001]).
         The filing and service requirements set forth in Court of Claims Act § 10 apply to state
and federal “constitutional torts” whether categorized as “negligent, unintentional or intentional
torts” (Lyles v State of New York, 3 NY3d 396, 400-401 [2004]).
         Claimant‟s attempt to cure the untimeliness of the claim by characterizing the allegedly
wrongful levy as a continuing claim against defendants is unavailing. “A cause of action accrues
upon the occurrence of all events essential to the claim such that the [claimant] would be entitled
to judicial relief” (Utica Mut. Ins. Co. v Avery, 261 AD2d 802, 803 [3d Dept 1999], lv denied 93
NY2d 818 [1999]). In particular, “a claim accrues for purposes of the Court of Claims Act when
damages are reasonably ascertainable” (Augat v State of New York, 244 AD2d 835, 836 [3d
Dept 1997], lv denied 91 NY2d 814 [1998]).
         Claimant‟s damages were ascertainable upon issuance of the tax compliance levy on
August 18, 2003. Giving the claimant the benefit of any doubt, the events underlying claimant‟s
cause of action were complete, at the very latest, when the defendants declined to respond to
claimant‟s letter of October 31, 2004. The claim is untimely under either assumption.
         The continuing violation doctrine “is usually employed where there is a series of
continuing wrongs and serves to toll the running of a period of limitations to the date of the
commission of the last wrongful act .... [and] may only be predicated on continuing unlawful acts
and not on the continuing effects of earlier unlawful conduct” (Selkirk v State of New York, 249
AD2d 818, 819 [3d Dept 1998]). The only wrongful act alleged by claimant is the issuance of the
tax compliance levy. The defendants‟ failure to respond to claimant‟s further nonsensical
submissions cannot support a finding of a “continuing violation” and claimant‟s "repeated
requests" for relief from the tax compliance levy did not extend the time in which he was
required to file and serve his claim (see Commack Self-Service Kosher Meats Inc. v State of
New York, 270 AD2d 687, 688-689 [3d Dept 2000]).
         Claimant‟s assertion that the untimeliness of the claim is excused because the defendants
fraudulently concealed the “truth” by not responding to his submissions is without merit. Equally
without merit is the claimant‟s declaration that the time within which the claim was to be filed
was equitably tolled by claimant‟s imprisonment. Claimant‟s imprisonment certainly posed no
obstacle to claimant‟s voluminous submission of materials to defendants and claimant fails to
explain how his imprisonment prevented him from filing and serving his claim in a timely
         Claimant essentially challenges an administrative determination of the defendants which
resulted in the issuance of a tax compliance levy. Had the claim been timely filed and served the
Court would still be required to dismiss it on the basis of a lack of subject matter jurisdiction
         “[A] plain reading of the claim reveals that claimant is seeking annulment of the
         Department's administrative determinations which resulted in the issuance of a tax
         compliance levy and the refusal to return the money to claimant. This is „a quintessential
         example of a dispute governed under CPLR article 78‟ (Madura v State of New York, [12
         AD3d 759] at 761) and it is well settled that „[t]he Court of Claims lacks subject matter
         jurisdiction of a cause of action where the primary relief sought is obtainable in an article
         78 proceeding, regardless of how a claimant characterizes his [or her] claim‟ (Young v
         State of New York, 179 Misc 2d 879, 882 [1999]” (Guy v State of New York, 18 AD3d
        936, 937 [3d Dept 2005]).
        Finally, defendants correctly point out that with respect to claimant‟s federal
constitutional claims “[i]t is well established that no cause of action lies against the State of New
York for alleged violations of an individual‟s rights secured by the United States Constitution”
(Ferrer v State of New York, 172 Misc 2d 1, 5 [Ct Cl 1996]).
        Defendants‟ motion is granted and the claim is dismissed.

                                                                                      August 28, 2006
                                                                                     Albany, New York

                                                                             HON. FRANK P. MILANO
                                                                           Judge of the Court of Claims

Papers Considered:

1.     Defendants‟ Notice of Motion, filed July 5, 2006;

2.     Affirmation of Kathleen M. Arnold, affirmed on July 5, 2006, with annexed exhibit;

3.     Claimant‟s Notice of Motion, filed July 24, 2006;

4.     Affirmation of Jesse McKinley Carter Jr (c), affirmed without date, with annexed

1. This and other decisions of the Court of Claims may be found at the Court‟s website:

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