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COURT OF CLAIMS OF NEW YORK Claim No. 44052 1968.NY.41611 <>; 290 N.Y.S.2d 621; 56 Misc. 2d 1032 May 15, 1968 EARL L. JORDAN, CLAIMANT,v.STATE OF NEW YORK, DEFENDANT Palmiere & Passero (Ronald Passero of counsel), for claimant. Louis J. Lefkowitz, Attorney-General (Gordon H. Mahley, Jr., of counsel), for defendant. John Carroll Young, J. Author: Young

John Carroll Young, J.

Author: Young

 This is a claim for damages for illegal commitment, confinement and imprisonment of the claimant; the claim was filed July 10, 1964.

Upon the trial, the claimant established that he was born on May 12, 1925 and that on May 12, 1943 by a purported judgment of conviction of burglary in the second degree based upon his plea of guilty in Tompkins County Court, the claimant was confined in Elmira Reformatory at Elmira, New York. He was placed on parole from that institution on November 3, 1944, but a month later on December 3, 1944 he was declared delinquent. However, it was not until December 24, 1944 that the claimant was again taken into custody. At that time, he was arrested upon a new and unrelated charge, as a result of which he was convicted of burglary in the second degree and burglary in the third degree.

On March 14, 1945, he was sentenced to Attica State Prison as a second offender and was received in that institution on March 16, 1945 under sentences of 20 to 30 years and 10 to 20 years to run concurrently.

Subsequently, as a result of an application made by the claimant, an order of the County Court of Tompkins County was entered in the office of the Clerk of that county on August 31, 1954, vacating, setting aside and declaring to be null and void the purported arraignment and plea of guilty by the claimant, and the purported judgment of conviction and sentence of the claimant to Elmira Reformatory on May 12, 1943 and likewise vacating and setting aside and declaring null and void all proceedings subsequent to the order of the Supreme Court transferring the indictment to said County Court for disposition, all on the grounds that said judgment of conviction was rendered without jurisdiction at a term of court other than a stated term or an adjourned stated term. Thereafter, on February 2, 1955 on said unrelated charge, the claimant was resentenced to Attica State Prison as a first offender to terms of 7 1/2 to 15 years and 2 1/2 to 5 years for the convictions of March, 1945, the same to run consecutively.

On November 25, 1959 the claimant was paroled from Attica State Prison, but on July 19, 1960 he was returned to Attica for a violation of his parole. He was later transferred to Auburn State Prison from which he was again placed on parole on November 14, 1963 and later was once more apprehended for parole violation in September of 1964. On November 23, 1964 he was returned to Attica where he remained until released upon the maximum discharge date of his sentence in January of 1965.

It is claimant's contention that since his initial conviction and confinement in Elmira Reformatory were declared null and void by the order of the Tompkins County Court, he was illegally detained at Elmira Reformatory and that he is entitled to damages for this period of allegedly wrongful detention.

At the close of the claimant's case, motions were made by the State to dismiss the claim upon the grounds that it was not timely filed and that the claimant had failed to prove that his confinement to Elmira Reformatory was made without a valid commitment or with a commitment which was invalid on its face. Decision was reserved upon these motions and the State thereupon rested and renewed the motions referred to above.

Counsel for the State and counsel for the claimant both stated in open court that the two-year period of limitation for filing a claim prescribed by subdivision 5 of section 10 of the Court of Claims Act, commenced to run on November 25, 1959. On that date, as noted above, the claimant was paroled from Attica State Prison where he was serving a sentence for a subsequent, unrelated charge. He had attained his majority on May 12, 1946, so that on said date his only disability existing to toll the statutory period was that of imprisonment, subject to the provisions of former section 510 of the Penal Law, now section 79 of the Civil Rights Law.

Since the subject matter of his claim concerns the events of his prior detention and did not involve his then current imprisonment on a subsequent and unrelated charge, the claimant upon his release on parole on November 25, 1959 qualified as a parolee from a State prison and came within the exception of subdivision b of section 510 of the Penal Law. At that time, he had the capacity to institute an action or to bring a claim with respect to matters arising out of his prior detention.

The issue thus presented concerning whether the claimant has timely filed his claim resolves itself into a question of whether or not the two-year statutory period continued to run uninterruptedly from November 25, 1959, or whether the claimant's reincarceration for parole violation on July 19, 1960 caused the period of limitation to be tolled during such subsequent detention.

As early as 1743 the courts of England, under a statute providing for the tolling of a Statute of Limitations while the plaintiff was "beyond the seas", held that if one being beyond the seas returned, the statute would run without suspension even though the plaintiff again went beyond the seas.

The Lord Chancellor, in the case of Sturt v. Mellish ([1743] 2 Atk. 610, 614; 26 Eng. Rep. 765) said that "by being in the kingdom after the cause of action had accrued, and not bringing any, though he went out of the kingdom again, his privilege is gone, as much as if he had been in the kingdom the whole six years."

In this country from an early date, courts of other States have held similarly where, for example, a lucid interval of one insane having started the statute running, the running of the statute was found not to be suspended by the party again becoming insane. (Clark v. Trail, 1 Met. [58 Ky.] 35; Duncan v. Vick, 13 Ky. Op. 1074; Ann. 53 A. L. R. 1327.) This is particularly true where the period between successive disabilities has been ...

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