Defendant's motion to dismiss complaint arising from cell search and confiscation of property is granted. Claim did not state the correctional facility or the cell where it accrued, and was thus jurisdictionally defective per Court of Claims Act § 11 (b).
|Claimant short name:||McRAE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||TROY McRAE, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: J. Gardner Ryan, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 7, 2017|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensatory damages as the result of a cell search. Defendant makes this pre-answer motion to dismiss the claim on the grounds that the Court lacks subject matter jurisdiction over the claim and that the claim fails to state a viable cause of action.(1) Claimant opposes the motion.
The claim alleges that claimant was removed from his cell on March 14, 2017 and that he discovered upon his return that his "cell was tossed, [his] legal packages were torn open . . . and items [were] taken" (Claim number 129483, ¶ 4). The claim alleges that he notified a sergeant of the condition of his cell and showed him that one of his legal envelopes was ripped open, and that the sergeant took the envelope, left and did not return, and that when claimant later spoke to the sergeant and inquired why he had taken his property, the sergeant replied that claimant could file a grievance, which was "misleading, because the proper procedure for [his] situation was to file an institutional claim" (id.). The claim alleges that defendant's agents violated Department of Corrections and Community Supervision (DOCCS) directives, the Correction Law and the State constitution, and asserts three causes of action: first, that the actions of defendant's agents constituted an unreasonable search and seizure (see id., at ¶ 5 [First Cause of Action]); second, that the confiscation of claimant's religious neckwear denied claimant his right to free exercise and enjoyment of worship (see id., at ¶ 6 [Second Cause of Action]); and third, that confiscation of claimant's jewelry denied him equal rights (see id., at ¶ 7 [Third Cause of Action]). The claim seeks damages for the loss of privacy, property, free enjoyment to worship, time and equal rights (see id., at ¶ 9).
Defendant argues that the Court lacks jurisdiction over the claim because it does not satisfy the pleading requirements of Court of Claims Act § 11 (b), and because claims alleging federal constitutional violations are outside the jurisdiction of the Court of Claims, and that any claim alleging state constitutional violations cannot be maintained because claimant has an alternative remedy, i.e. an action for the loss or destruction of his personal property. Defendant further argues that the Court lacks jurisdiction over the claim inasmuch as the claim for lost property fails to assert that claimant exhausted his administrative remedies.
Claimant argues in reply that the claim does not assert federal constitutional violations, and that while he has a remedy for the loss or destruction of his property, his claim seeks to remedy the violations to his right to privacy (see McRae Reply to Affirmation, at ¶ 5). Claimant asserts that exhaustion of administrative remedies is not required because this claim does not seek damages for the loss of his personal property, and that he did file an institutional claim but had yet to receive any response as of the date of his submission on the motion (see id., at ¶ 9).
Defendant's motion to dismiss the claim will be granted on jurisdictional grounds. Court of Claims Act § 11 (b) requires, among other things, that "[t]he claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained." The pleading must set forth sufficient facts to satisfy each of the pleading requirements set forth in Court of Claims Act § 11 (b) (see Kolnacki v State of New York, 8 NY3d 277, 280-281 ), and the failure to do so is a fatal defect in subject matter jurisdiction that requires dismissal of the claim (see Lepkowski v State of New York, 1 NY3d 201, 209 ; Kolnacki, at 281). While it has been stated that substantial compliance with this pleading requirement is sufficient (see Wharton v City Univ. of N.Y., 287 AD2d 559, 559-560 [2d Dept 2001], quoting Grumet v State of New York, 256 AD2d 441, 442 [2d Dept 1998]), and "absolute exactness is not required, the claim must provide a sufficiently detailed description of the particulars of the claim . . . [and] defendant is not required to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotations and citations omitted]). In non-compliance with the Court of Claims Act § 11 (b), this claim fails to state where it accrued because the claim does not identify either the correctional facility at which the events allegedly occurred or the cell at which the alleged search and seizure took place. Thus, the claim is jurisdictionally defective and must be dismissed.
Even assuming the claim was not jurisdictionally defective under Court of Claims Act § 11 (b), defendant's motion to dismiss would be granted on other grounds. Claimant asserts that his claim does not seek compensation for lost property, but the claim manifestly seeks compensation for lost property (see Claim number 129483, ¶ 9 ["loss of property (50 stamps, 18 magazines, handi-craft cosmetic eye wears [sic], rings, watches and religious neck wear, 78 color markers"]). Claimant's candid admission that his administrative remedies are not yet exhausted (see McRae Reply to Affirmation, ¶ 9) renders that part of the claim seeking compensation for lost property jurisdictionally defective under Court of Claims Act § 10 (9) (Williams v State of New York, 38 AD3d 646, 647 [2d Dept 2007]), which requires dismissal of that part of the claim (see Livingston v State of New York, UID No. 2009-040-043 [Ct Cl, McCarthy, J., June 4, 2009]; Tafari v State of New York, UID No. 2002-019-591 [Ct Cl, Lebous, J., Dec. 9, 2002]). Moreover, claimant's concession that he has an alternative remedy in the form of a personal property loss claim (see McRae Reply to Affirmation, ¶ 5), forecloses any action sounding in state constitutional tort because a state constitutional tort is a narrow remedy available when there is no alternative remedy (see Brown v State of New York, 89 NY2d 172, 192 ; Martinez v City of Schenectady, 97 NY2d 78, 83-84 ; Waxter v State of New York, 33 AD3d 1180, 1181-1182 [3d Dept 2006]; Bullard v State of New York, 307 AD2d 676, 678 [3d Dept 2003]).
Accordingly, it is
ORDERED, the defendant's motion number M-90242 is GRANTED, and claim number 129483 is DISMISSED.
July 7, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 129483, filed March 27, 2017;
(2) Verified Answer, filed May 1, 2017;
(3) Amended Answer, filed May 10, 2017;
(4) Correspondence of Elizabeth A. Gavin, AAG, dated May 10, 2017
(5) Notice of Motion, dated April 14, 2017;
(6) Affirmation of J. Gardner Ryan, AAG, dated April 14, 2017, with Exhibit;
(7) Reply of Troy McRae to Notice of Motion, dated April 21, 2017, with Exhibit 1;
(8) Reply of Troy McRae to Affirmation, dated April 21, 2017.
1. Defendant filed its verified answer to the claim subsequent to the filing of this motion to dismiss (see Verified Answer, filed May 1, 2017). Defendant subsequently filed and then withdrew an amended answer on May 10, 2017.