Motion for late claim relief pursuant to Court of Claims Act § 10 (6) denied. All causes of action that may have been stated in the proposed claim lacked appearance of merit.
|Claimant(s):||SIDNEY E. PURDIE|
|Claimant short name:||PURDIE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||SIDNEY E. PURDIE, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 4, 2017|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this motion seeking permission to file a late claim alleging that he was the victim of sexual harassment committed by a correction officer at Green Haven Correctional Facility (CF) in October 2016. Defendant opposes the motion on the ground that it was not served with the motion, that the proposed claim lacks the appearance of merit and that claimant has not provided a meritorious excuse for not timely filing the claim. Claimant has submitted papers in reply.
On May 10, 2017, claimant filed this motion, consisting of the notice of motion, affidavit in support of the motion, two affidavits of service, a proposed claim (with an affidavit in support of an application for poor person relief and assignment of counsel and an affirmation of service), assorted documents and numerous exhibits. The first affidavit of service is contiguous to claimant's affidavit in support, bears the caption of the proposed claim, was sworn to on May 4, 2017 and states that claimant served on the Attorney General the notice of motion, the affidavit in support of the motion, and the exhibits that were filed on the motion. However, the first affidavit of service does not state that the proposed claim was served, and it does not state the date of service (see Affidavit of Service, numbered pp. 10-12). The second affidavit of service was also sworn to on May 4, 2017 and it states that the proposed claim and exhibits were served on the Attorney General on May 4, 2017 (see Affidavit of Service, numbered pp. 1-2). Defendant argues that it was not served with a copy of the motion, and that the motion should be denied because defendant did not receive notice of the motion (see Strickland Smith Affirmation ¶ 5), to which claimant replies that he served defendant. The Court declines to deny the motion for lack of service inasmuch as the defendant concedes that "[a] copy of the motion was received from the Court" (Strickland Smith Affirmation ¶ 4), defendant sought and was granted an adjournment of the motion return date, and defendant has opposed the motion on the merits (id., ¶¶ 6-8). Accordingly, the Court declines to hold a Traverse Hearing on the issue of service when, as here, defendant has had a full opportunity to oppose the motion, and the motion will not be denied on the ground that defendant was not served.
The proposed claim alleges that it is for "lying, battery, false confinement and sexual harassment" committed by defendant's agents within the scope of their employment at Green Haven CF (see Proposed Claim, ¶ 2). Specifically, the proposed claim alleges that claimant mistakenly took the identification (ID) card of another inmate and informed Correction Officer (CO) Wolfmann of the mistake on October 7, 2016, who took the card from claimant. The claim alleges that later that day claimant approached CO Wolfmann, made jokes of a sexual nature about claimant's last name to a co-worker and told claimant that he did not believe that claimant had mistakenly taken the other inmate's ID card. The proposed claim alleges that CO Wolfmann subsequently issued an inmate misbehavior report (IMR) against claimant, received on October 8, 2016, that had a "penis imprinted on the bottom of the [IMR]" (id., ¶ 26). The proposed claim alleges that he notified the hearing officer (HO) on October 12, 2016 at the Tier hearing on the IMR about the lewd image on the IMR, who told him to "shut up," and that claimant asserted his right to be protected from any lewd images and from being sexually harassed, and that the hearing was adjourned and reconvened on October 24, 2016, and the IMR was subsequently dismissed due to procedural error. (see id., ¶¶ 28-30). The proposed claim alleges that CO Wolfmann stalked claimant, that he "willfully and maliciously sorted [sic] to engage in a sexual act with claimant" and "caused the claimant to sustain serious mental injury," and that his actions were intentional (see id. ¶¶ 35, 36). The claim alleges that, subsequent to the complaints claimant lodged against him, CO Wolfmann was designated as an escort officer who would escort claimant and other inmates to the shower area. The claim also alleges that claimant has filed grievances concerning CO Wolfmann's alleged sexual harassment, but that a complete review of those grievances could not be conducted as claimant's legal documents were not received, prompting another grievance and a request for a new hearing. The claim also seeks compensation for the legal documents that were allegedly lost or destroyed in connection with his grievances (see id., Section [D], Mental Anguish, ¶¶ 23-32), and makes reference to state constitutional torts and State constitutional rights to be free from cruel and unusual punishment, and to due process and equal protection (see id., ¶¶ 24-25).
In deciding a late claim motion, Court of Claims Act § 10 (6) requires the Court to consider, among other factors, "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or served upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy." The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 981 ), and the weight accorded the various factors is a matter within the discretion of the Court.
Claimant does not expressly contend that the delay in filing the claim is excusable, but he asserts that he did not know of the time requirements in the Court of Claims Act, and he requests that the Court consider the handicaps and conditions that affect him, specifically that he is a lay person with little education who has had brain trauma, and that his restricted confinement limits his access to counsel and legal references. Unfamiliarity with the law is not an excuse that weighs in favor of a late claim application (see Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 202], lv dismissed 99 NY2d 589 ), and although claimant refers to certain handicaps and conditions of his incarceration, he does not assert that these constitute an excuse for his failure to timely file and serve the claim (see Flemming v State of New York, UID No. 2012-038-572 [Ct Cl, DeBow, J., Oct. 10, 2012]). Thus, the lack of an acceptable excuse for the failure to timely file the claim weighs against claimant's application for the late claim relief.
Whether the State had notice of the essential facts constituting the claim and had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State are closely related, and may be considered together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Claimant contends that defendant had notice of the essential facts of the claim and conducted an investigation into his claims, attaching numerous documents demonstrating such, and that his failure to timely file and serve the claim could not have prejudiced defendant. In the absence of any argument from defendant that it did not have notice or an opportunity to investigate, or that the failure to timely file and serve a claim would result in substantial prejudice, the Court finds that these factors weigh in favor of granting the motion.
The appearance of merit to a proposed claim is perhaps the most significant factor for the Court to consider because Court of Claims Act § 10 (6) reflects a legislative determination that the Court of Claims should permit a potential litigant to have his or her day in court (see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]), yet a litigant should not be subjected to the futility of pursuing a meritless claim (see Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). A proposed claim has an appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not patently groundless, frivolous or legally defective; and (2) all of the evidence submitted on the motion establishes reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., supra at 11).
In arguing that his claim has the appearance of merit, claimant states that the "claim is based upon the misconductive [sic] behavior of C.O. Wolfmann and of the staff(s) whom render the officer to do such acts, and further for defendants' [sic] to not properly intercede in the care of the ongoing behavior of C.O. Wolfmann's stalking of [claimant]" (Purdie Affidavit, ¶ 6). Defendant argues that the claim lacks merit because defendant's actions in conducting claimant's disciplinary hearing is entitled to absolute immunity, and thus no cognizable cause of action for unlawful confinement could be maintained.
To the extent that the claim asserts a cause of action due to CO Wolfmann's actions, a cause of action for harassment is not maintainable in New York (see Monreal v New York State Dept. of Health, 38 AD3d 1118, 1119 [3d Dept 2007]; Daulat v Helms Bros., Inc., 18 AD3d 802, 803 [2d Dept 2005]; Broadway Cent. Prop. v 682 Tenant Corp., 298 AD2d 253, 254 [1st Dept 2002]; see also Johnson v State of New York, UID No. 2016-038-549 [Ct Cl, DeBow, J., July 28, 2016]), and it is well-settled that claims for intentional infliction of emotional distress against the State of New York are barred as a matter of public policy (see Brown v State of New York, 125 AD2d 750, 752 [3d Dept 1986], appeal dismissed 70 NY2d 747 ). Further, to the extent that the proposed claim asserts a cause of action sounding in battery (see Proposed Claim ¶ 2), and suggests that a sexual assault occurred (see id., at 37), the proposed claim alleges facts in support of a cause of action sounding in sexual harassment, but it does not assert that CO Wolfmann " 'intentionally engage[d] in offensive bodily contact without [claimant's] consent' " (Cicci v Chemung County, 122 AD3d 1181, 1183 [3d Dept 2014], lv to appeal dismissed in part 25 NY3d 1062 , quoting Guntlow v Barbera, 76 AD3d 760, 766  appeal dismissed 15 NY3d 906 ; see Goff v Clarke, 302 AD2d 725, 726 [3d Dept 2003]). Thus, the claim is legally defective with regard to any allegations sounding in intentional tort by CO Wolfmann.
Claimant essentially asserts that defendant's agents were negligent in their supervision of CO Wolfmann, and accordingly, the claim must contain allegations that CO Wolfmann was acting outside the scope of his employment, that defendant's agents knew or reasonably should have known of his propensity to engage in the conduct that caused claimant's injuries, and that the alleged negligent supervision was a proximate cause of claimant's injuries (see Gray v Schenectady City School Dist., 86 AD3d 771, 773-774 [3d Dept 2011]). While it could be inferred that the claim alleges that CO Wolfmann was acting outside the scope of his duties, the claim contains no allegations that CO Wolfmann had a propensity to engage in any sexual harassment prior to October 7, or October 8, 2016, the earliest and only dates of alleged harassment by CO Wolfmann alleged in the proposed claim, or that his employer knew or reasonably should have known of his alleged propensity. To the extent that the claim seeks to hold defendant liable under a theory of negligent supervision for any of CO Wolfmann's actions following his protestations to the HO on October 12, 2016 or claimant's filing of grievances, the claim is bereft of any specific allegations as to the dates of the alleged subsequent harassing conduct, and thus fails to conform to the pleading requirements in Court of Claims Act § 11 (b), rendering it jurisdictionally defective (see Lepkowski v State of New York, 1 NY3d 201, 209 ; Kolnacki v State of New York, 8 NY3d 277, 281 ). Therefore, the claim is legally defective with regard to any allegations of negligent supervision.
Further, to the extent that the claim attempts to assert a cause of action sounding in constitutional tort (see Proposed Claim, Section [D], Mental Anguish, ¶¶ 24-25), such a cause of action is available in only limited circumstances as it is a "narrow remedy" that may be pursued only when no other remedy is available to enforce the claimed constitutional right (see Brown v State of New York, 89 NY2d 172, 191-192 ; Martinez v City of Schenectady, 97 NY2d 78, 83-84 ; Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Bullard v State of New York, 307 AD2d 676, 678 [3d Dept 2003]). Here, the proposed claim fails to plead the nature of the alleged constitutional tort, rendering it jurisdictionally defective under Court of Claims Act § 11 (b) (see Lepkowski v State of New York, supra; Kolnacki v State of New York supra). Moreover, even if the claim were properly pleaded, the claim alleges that claimant attempted to use the grievance process, and thus it appears that claimant had an alternative remedy to vindicate the claimed constitutional rights. To the extent that claimant is seeking permission to file a late claim for lost or destroyed legal documents, late claim relief pursuant to Court of Claims Act § 10 (6) is not available for claims for lost personal property brought pursuant to Court of Claims Act § 10 (9) (see Encarnacion v State of New York, 133 AD3d 1049, 1050 [3d Dept 2015], lv denied 26 NY3d 919 ; Roberts v State of New York, 11 AD3d 1000, 1001 [4th Dept 2004]). Although the proposed claim recites that it is for "false confinement" (see Proposed Claim, ¶ 2), it contains none of the elements of such a cause of action (see Martinez v City of Schenectady, 97 NY2d 78, 85  [defendant intended to confine plaintiff, who was conscious of the confinement and did not consent to it, and the confinement was not otherwise privileged]). Finally, to the extent that the claim seeks injunctive relief (see Proposed Claim, Section [D], Mental Anguish, ¶ 22), "[a]s a court of limited jurisdiction, the Court of Claims has no jurisdiction to grant strictly equitable relief" (Madura v State of New York, 12 AD3d 759, 760 [3d Dept 2004], lv denied 4 NY3d 704 , citing Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [3d Dept 1997]), even if the proposed claim stated a cause of action upon which relief could be granted.
For all of the aforementioned reasons, the crucial factor of the appearance of merit weighs against claimant's motion with regard to all theories of liability.
Claimant's argument that he has no other available remedies by virtue of Correction Law § 24 is unopposed and partially meritorious. While claimant may maintain an action seeking redress of federal constitutional rights under 42 USC § 1983 in the State Supreme Court (Haywood v Drown, 556 US 729 ) or in federal court, he has no other forum within which to bring a suit alleging negligence of State correction officials. Thus, as to the negligent supervision theory, this factor weighs in claimant's favor. As to the remaining theories, this factor weighs against the application.
The Court has considered and weighed all of the factors set forth in Court of Claims Act § 10 (6), and finds that while four of the six statutory factors weigh in favor of granting the late claim motion on the negligence supervision theory and three of the six factors weigh in favor of all of the remaining theories, the crucial factor of the appearance of merit is lacking with respect to any purported cause of action in the proposed claim. Thus, the Court concludes that claimant should not be granted permission to file and serve a late claim, and it is
ORDERED, that claimant's motion number M-90401 is DENIED, and it is further
ORDERED, that claimant's request for poor person relief in the nature of assignment of counsel is DENIED.
October 4, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Notice of Motion, dated May 4, 2017;
(2) Affidavit of Sidney E. Purdie in Support of Motion to File a Late Claim, sworn to May 4, 2017,with:
(a) Affidavit of Service of Sidney E. Purdie, sworn to May 4, 2017;
(b) Affidavit of Service of Sidney E. Purdie, sworn to May 4, 2017;
(c) Proposed Claim, dated May 4, 2017, with Affidavit of Sidney E. Purdie in Support of Poor Person Relief, sworn to May 4, 2017, and Affirmation of Service, date May 4, 2017;
(d) First Amended Exhibits, dated May 4, 2017;
(e) Bill of Particulars, dated May 4, 2017;
(f) Notice of Intention to File a Claim, verified March 9, 2017, with Exhibits 1-75, A-F;
(3) Correspondence of Jeane Strickland Smith, AAG, dated June 5, 2017;
(4) Correspondence of Nancy Schulman, Principal Law Clerk, dated June 30, 2017;
(5) Affirmation of Jeane Strickland Smith, AAG, in Opposition, dated July 3, 2017;
(6) Reply of Sidney E. Purdie to Defendant's Affirmation in Opposition, dated July 11, 2017, with Exhibit A;
(7) Notice of Sidney E. Purdie, undated, received on July 28, 2017, with Exhibits A-I.