                            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
