Kelly v. State

• Decision Date: 20 May 1977
• Docket Number: No. 60060,60060
• Citation: 57 A.D.2d 320,395 N.Y.S.2d 311
• Parties: Timothy Boyd KELLY, Jr., Respondent, v. The STATE of New York, Appellant. Claim
• Court: New York Supreme Court — Appellate Division

Page 311

395 N.Y.S.2d 311

57 A.D.2d 320

Timothy Boyd KELLY, Jr., Respondent, v. The STATE of New York, Appellant. Claim No. 60060.

Supreme Court, Appellate Division, Fourth Department.

May 20, 1977.

Louis J. Lefkowitz, Atty. Gen., Albany, for appellant; (Jeremiah Jochnowitz, Albany, of counsel).

Richard A. Kerner, New York City, for respondent.

Before CARDAMONE, J. P. and SIMONS, DILLON, GOLDMAN and WITMER, JJ.

GOLDMAN, Justice.

Claimant-respondent Timothy B. Kelly, Jr. was an inmate at the Attica Correctional Facility during the insurrection of September 9-13, 1971. In his claim he alleges: (1) That New York State Police, National Guardsmen and Correctional Officers, on or about September 13, 1971, did "shoot, threaten, menace, beat, strike, injure and otherwise harm" him, causing serious injuries "believed to be permanent and progressive in nature"; (2) that such officers converted various items of his personal property; (3) that for approximately four days after September 13, 1971, the State provided improper medical and hospital treatment which exacerbated his injuries; and (4) that "during the said post-assault period", he "was forced to endure various malicious acts of torture, brutality, humiliation, pain and suffering" inflicted upon him by the officers. Alleging that the officers were acting in the course of their official duties and that the specified acts were "malicious, wanton, intentional, reckless, improper and negligent", claimant seeks compensatory and punitive damages.

Claimant was continuously incarcerated from a time prior to September, 1971 until March 22, 1974, when he was released from custody at Matteawan State Hospital, a facility under the jurisdiction of the Department of Correction (7 NYCRR 101.2). Meanwhile, claimant's notice of intention to file a claim was filed December 9, 1971, within the 90 days limited by subdivisions 3 and 3-a of section 10 of the Court of Claims Act. The claim itself was filed March 12, 1976.

Upon the foregoing undisputed facts, the State unsuccessfully moved to dismiss the claim. On this appeal, the State contends: (1) that the claim should have been dismissed for untimely filing; and (2) that so much of the claim as sounds in negligence should have been dismissed on the merits on the authority of Jones v. State, (33 N.Y.2d 275, 352 N.Y.S.2d 169, 307 N.E.2d 236, modifying, 40 A.D.2d 227, 338 N.Y.S.2d 738).

If a claimant is not under legal disability when his claim arises, and if a notice of intention to file a claim has been timely filed, then a "claim to recover damages for injuries to property or for personal injury caused by the tort of an officer or employee of the state while acting as such officer or employee * * * shall be filed within two years after the accrual of such claim" (Court of Claims Act, § 10, subd. (3)). The same two-year time limit applies where the injury was caused by "the tort of a member of the organized militia" (Court of Claims Act, § 10, subd. (3-a)). However, if the claimant "shall be under legal disability, the claim may be presented within two years after such disability is removed" (Court of Claims Act, § 10, subd. (5)).

In September, 1971, when claimant's causes of action are alleged to have accrued, he was under legal disability to file his claim, for the Civil Rights Law then provided in effect that a state prisoner's right and capacity to institute an action or proceeding in a court were suspended during his incarceration (Civil Rights Law, § 79 (added L.1965, c. 1031, § 26); Hewson v. State, 27 A.D.2d 358, 360, 279 N.Y.S.2d 790, 792; Lynch v. Quinlan, 65 Misc.2d 236, 317 N.Y.S.2d 216; O'Brien v. McGinnis, 63 Misc.2d 170, 171, 311 N.Y.S.2d 553, 555). That such suspension was recognized as a legal disability was reflected in the CPLR, which then provided with some qualifications that if a person was "imprisoned on a criminal charge or conviction" when the cause of action accrued, the statute of limitations was "extended by the period of disabilit (CPLR 208 (added L.1962, c. 308, § 208)). Thus, as the law stood in 1971, a prisoner who suffered tortious injury at the hands of a correctional officer could present his claim against the State at any time within two years after release from prison (Crawford v. State, 37 A.D.2d 450, 326 N.Y.S.2d 449).

Effective September 10, 1973, the Civil Rights Law was amended to provide, with exceptions not here pertinent, that "A sentence of imprisonment in a state correctional institution * * * shall not be deemed to suspend the right or capacity of any person so sentenced to commence and prosecute an action or proceeding in any court within this state * * * (Civil Rights Law, § 79, subd. (2) (as amd. L.1973, c. 687, § 1)). By the same chapter of the Laws of 1973, CPLR 208 was amended, also effective September 10, 1973, to eliminate " imprisoned on a criminal charge or conviction" as grounds for tolling the statute of limitations (L.1973, c. 687, § 3; see, J. McLaughlin, 1973 Practice Commentary to CPLR 208, 7B McKinney's Cons.Laws of N.Y., 1976-1977 Pocket Part, p. 36). The State therefore urges that on the effective date of these amendments the claimant's "legal disability" to assert his claim was "removed" within the meaning of Court of Claims Act, § 10, subd. (5), so that he had two years after that date i. e., until September 10, 1975 to file his claim. Because he did not do so until March 12, 1976, the State contends that his claim is untimely.

It is claimant's position that despite the 1973 amendment to section 79 of the Civil Rights Law he remained under "legal disability" until his release on March 22, 1974, so that his filing on March 12, 1976 was timely. He urges that the application of the 1973 amendment to his claim would contravene General Construction Law, § 93, which forbids application of a repealing statute in such a way as to "affect or impair" a "right accruing, accrued or acquired * * * prior to the time such repeal takes effect". It has been said that "(a) repealing statute which preserves rights contemplates definite and substantial ones which are, or are in the nature of, vested property rights and not merely inchoate personal privileges to which in a legal sense one has no indefeasible vested claim" (Matter of Wentworth, 230 N.Y. 176, 187, 129 N.E. 646, 649). Thus, for example, General Construction Law, § 93 has been held not to forbid a retroactive change in remedies upon an accrued liability (People v. Bruno, 176 App.Div. 56, 159 N.Y.S. 776). The only direct and immediate effect of the Civil Rights Law amendment here in question is to expand a prisoner's right to sue while incarcerated. Read together with Court of Claims Act, § 10, subd. (5), the amendment does operate to hasten the day when a prisoner must assert his tort claim against the State, and in this remote sense it might be said to impair a prisoner's "right" to wait up to two years after release before pressing his claim. We conclude, however, that this right is neither so directly affected nor of such a nature as to come within the protection of General Construction Law, § 93.

More plainly inapposite is General Construction Law, § 94, which by its terms applies only to "actions and proceedings * * * pending immediately prior to the taking effect of such repeal". Claimant's proceeding could not have been "pending" prior to the 1973 amendment to section 79 of the Civil Rights Law, because until that time he was without legal capacity to commence the proceeding.

In any event, it has been said of General Construction Law, §§ 93 and 94 that "(t)hese sections * * * like all provisions of the General Construction Law, are not to be applied when the 'general object' of the statute, 'or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended'. (General Construction Law, § 110; see, People v. Roper, 259 N.Y. 635, 182 N.E. 213). They * * * 'provide merely a principle of construction', which governs 'In the absence of * * * contrary intent' * * * " (People v. Oliver, 1 N.Y.2d 152, 159, 151 N.Y.S.2d 367, 373, 134 N.E.2d 197, 201; see also, Jespersen-Kay Modular Construction Ltd. v. Clinton Avenue Paul Place Houses, Inc., 85 Misc.2d 721, 724, 381 N.Y.S.2d 407, 410). Here the Legislature plainly intended that persons imprisoned on the effective date of the simultaneous amendments to section 79 of the Civil Rights Law and section 208 of CPLR be governed by the amendments. The Legislature could as easily have chosen to remove the disability provision from section 79 while leaving intact the tolling provision of CPLR 208, so that a prisoner would have been given the option of suing while incarcerated or waiting until after release (see, J. McLaughlin, 1973 Practice Commentary to CPLR 208, 7B McKinney's Cons.Laws of N.Y., 1976-1977 Pocket Part, p. 36). But by amending the two sections together in the same bill, the Legislature unmistakably manifested its intent that prisoners be required, and not merely permitted, to commence judicial proceedings in accordance with time limits applicable to non-prisoners. We conclude, therefore, that even if General Construction Law, §§ 93 and 94 were otherwise applicable in this case, their requirements were overridden by a contrary legislative intent.

Claimant also invokes the rule that statutes changing a statute of limitations will not be given retroactive effect unless such legislative intent is clearly shown (People v. Cohen, 245 N.Y. 419, 421, 157 N.E. 515, 516; Metcalf v. Central School District No. 1, 280 App.Div. 875, 114 N.Y.S.2d 271; Garcia v. Deibert, 19 Misc.2d 563, 195 N.Y.S.2d 391). The rule is inapposite here, however, for there is no true attempt to apply the amendment to section 79 of the Civil Rights Law retroactively; it simply removes a legal disability as of its effective date. Nor does the amendment directly and necessarily operate to shorten a statute of limitations....