McKINLEY CARTER JR v. KAREN ARCHER, TAX COMPLIANCE AGENT III, NEW YORK STATE DEPARTMENT OF TAXATION & FINANCE, #2006-041-002, Claim No. 112242, Motion No. M-71952 Synopsis 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 Comments: Official citation: Appellate results: See also (multicaptioned case) Decision 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 $25,766.00. 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 ). 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 ). 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 ). 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 manner. 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 since: “[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 ” (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 exhibits. 1. This and other decisions of the Court of Claims may be found at the Court‟s website: www.nyscourtofclaims.state.ny.us.
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