|Claimant short name:||SANTANA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The Court has sua sponte amended the caption to reflect the State of New York as the sole proper defendant.|
|Judge:||CATHERINE C. SCHAEWE|
|Claimant's attorney:||DOUGLAS WALTER DRAZEN, ESQ.|
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN, ATTORNEY
BY: James E. Shoemaker, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 28, 2017|
|See also (multicaptioned case)|
Claimant filed Claim No. 127217 alleging various causes of action arising out of his employment as a correction officer (CO) with the Department of Corrections and Community Supervision (DOCCS) at Sullivan Correctional Facility (Sullivan). Defendant State of New York (defendant) answered and asserted several affirmative defenses. Defendant now moves to dismiss Claim No. 127217. Claimant opposes the motion and cross-moves to amend the claim and to compel disclosure. Defendant replies and opposes the cross motion.
Some background information is necessary before addressing the merits of the motions.
On January 3, 2014, claimant served defendant with a notice of intention to file a claim alleging that claimant:
has been subject[ed] to an ongoing course of intentional mistreatment, hostile and unsafe work environment, intentional infliction of emotional harm, harassment and administrative hazing at the hands of his superiors to the extent that he was singled out for unfair, unwarranted, and disproportionate disciplinary measures, and was subject to procedures not in compliance with standard practice.(2)
On March 27, 2014, claimant filed Claim No. 124125(3) containing the same allegations as the notice of intention. He further elaborated that the disciplinary procedures he was subjected to were based upon grossly exaggerated or unreasonable complaints and that the procedures were not in compliance with standard practice. He also alleged that he was singled-out and targeted with verbal abuse, leading to a hostile work environment. He asserted that the conduct began January 1, 2006 and continued to the present (presumably March 5, 2014, when the claim was executed). By Decision and Order entered November 13, 2015, this Court granted defendant's motion to dismiss Claim No. 124125 (Santana v State of New York, UID No. 2015-044-536 [Ct Cl, Schaewe, J., Aug. 13, 2015]). The Court held that "[b]ased upon the conclusory nature of almost all of claimant's allegations and that they seemingly took place over a nine-year period, the Court finds that claimant has failed to comply with Court of Claims Act § 11 (b)" (id. at 3).
On December 16, 2015, claimant filed Claim No. 127217 containing the same allegations as Claim No. 124125, as well as some additional assertions pertaining to defendant's allegedly wrongful conduct. Claim No. 127217 contains causes of action for intentional infliction of emotional distress, prima facie tort, an unspecified intentional tort, negligence and tortious interference with contract. Defendant filed and served an answer asserting several affirmative defenses.
At the same time he filed Claim No. 127217, claimant also filed Claim No. 127218. In Claim No. 127218, claimant alleges that since March 4, 2014, he "has been subject[ed] to an ongoing course of mistreatment, unlawful retaliation and administrative hazing at the hands of his superiors, consisting of . . . [d]eliberately or carelessly being exposed to assault and/or threat of assault . . . [and] harassment through misuse of facility procedures by . . . [I]nmate . . . Arthur Kinlaw."(4) Claimant also asserts that his Freedom of Information Law (FOIL) requests for records concerning Kinlaw's assault on him and whether the inmate was prosecuted or otherwise disciplined have been ignored. Claimant alleges that defendant's failure and/or refusal to comply with the FOIL requests so that he could correct his employment records was, in part, retaliation for his commencement of legal proceedings in March 2014 (presumably referring to Claim No. 124125). Defendant also answered Claim No. 127218 and asserted several affirmative defenses.
The Court notes that (as claimant has correctly indicated) Claim No. 127217 and Claim No. 127218 were consolidated by Order dated March 8, 2016. The parties were directed that future filings be filed under Claim No. 127217. However, defendant has included only a copy of the original Claim No. 127217 in its motion papers to dismiss. Further, defendant has not referenced the allegations of the original Claim No. 127218 in any manner. Accordingly, the Court will only address defendant's motion to dismiss with regard to the causes of action based upon facts as set forth in the original Claim No. 127217 prior to its consolidation with the original Claim No. 127218. This Decision and Order will refer to the separate claim numbers under which the claims were originally filed in an attempt to alleviate any confusion.
The Court will initially address defendant's motion to dismiss. Defendant argues that claimant has failed to comply with Court of Claims Act § 11 (b) because the dates listed are vague and the allegations fail to describe the incidents in detail and/or the employees or officials involved. Defendant further asserts that based upon the lack of specificity it is not possible to determine whether the claim is timely.
Court of Claims Act § 11 (b) requires that a claim set forth "the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed."(5) Pleading with absolute exactness is not required, and the guiding principle underlying Court of Claims Act § 11 (b) is whether the State is able " 'to investigate the claim[s] promptly and to ascertain its liability under the circumstances' " (Lepkowski v State of New York, 1 NY3d 201, 207 , quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). "However, 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, 1116 [3d Dept 2013], quoting Lepkowski, 1 NY3d at 208). A claimant's "[f]ailure to abide by [the] pleading requirements [of Court of Claims Act § 11 (b)] constitutes a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result" (id.; see Kolnacki v State of New York, 8 NY3d 277, 281 ; Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept 2010], lv dismissed 15 NY3d 911 ).
Claimant has submitted an affidavit both in opposition to defendant's motion to dismiss as well as in support of his cross motion to amend the claim.(6) In his affidavit, claimant attempts to supplement the pleading by setting forth additional factual allegations, as well as referencing the information contained in both his deposition testimony(7) and his affidavit submitted in support of his previous cross motion to amend Claim No. 124125.(8) However, the Court is limited to considering only the allegations as set forth in the pleading as filed and served to determine whether it complies with the requirements of Court of Claims Act § 11 (b) (Somer v State of New York, UID No. 2014-044-525 [Ct Cl, Schaewe, J., June 5, 2014], affd sub nom. Sommer v State of New York, 131 AD3d 757 [3d Dept 2015]; see generally, Kolnacki, 8 NY3d at 280; Signature Health Ctr., LLC v State of New York, 42 AD3d 678, 679 [3d Dept 2007]).
Claimant has set forth very few factual allegations in Claim No. 127217 itself. Claimant asserts that disciplinary action was taken against him based upon exaggerated or fabricated complaints and that DOCCS records were destroyed in order to thwart his defense. Specifically, claimant has indicated that he was accused of insubordination and impeding an investigation in March 2009, and was issued a counseling memorandum in December 2012. However, he did not provide any specific information concerning the matters in Claim No. 127217, such as the purportedly wrongful bases for the institution of the disciplinary actions, what superiors were involved, and what DOCCS records were allegedly altered or destroyed. Claimant also alleges that by verbally abusing him, his superiors singled him out and embarrassed him in order to alienate him from his co-workers and created a hostile work environment. Claimant asserts that one instance occurred on February 20, 2009 in the office of the then Deputy Superintendent of Security and another instance in March 2013 in the BHU program area near the conference room. However, he again does not provide the identity of any superior involved or the statements which constituted the abuse.
Claimant's allegation of negligence concerning the transfer of Inmate Goodson also suffers from a lack of specificity. Although claimant does state that the attack took place on January 16, 2013, he does not indicate how DOCCS should have foreseen the attack. With respect to his claim of retaliation for reporting this assault to the State Police, claimant fails to allege facts which would establish how the evaluations that he was required to undergo before returning to work were either unnecessary or took place in inconvenient locations.
Claimant also conclusorily asserts that defendant interfered with his contractual relationship with the employee union by interfering with the union's representation of him during his disciplinary proceedings. Although he indicates the alleged interference took place in early 2006 and in February 2009, he provides no specifics concerning the conduct which purportedly constituted interference.
Based upon the conclusory nature of most of claimant's allegations and that they seemingly took place over the course of almost 10 years (January 1, 2006 through December 3, 2015), the Court finds that claimant has failed to comply with Court of Claims Act § 11 (b), as the allegations contained in Claim No 127217 are not sufficiently specific to allow defendant an opportunity to conduct a meaningful investigation and to ascertain its potential liability (Heisler, 78 AD2d at 767). Because jurisdictional defects cannot be cured by amendment (see Hogan v State of New York, 59 AD3d 754, 755 [3d Dept 2009]; see also Dinerman, 69 AD3d at 1146; Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983, 985 [3d Dept 1986]; Grande v State of New York, 160 Misc 2d 383, 385 [Ct Cl 1994]), all causes of action based upon the facts as asserted in Claim No. 127217 are hereby dismissed.
As set forth previously herein, claimant has cross-moved to amend the claim. Although an amendment cannot cure the jurisdictional defects associated with Claim No. 127217, the Court notes that the proposed amended claim actually pertains only to the causes of action based upon the facts as originally set forth in Claim No. 127218.(9) Accordingly, the Court will address the merits of claimant's cross motion.
CPLR 3025 (b) provides that "[a] party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court" (see Uniform Rules for the Court of Claims [22 NYCRR] § 206.7 [b]). Leave to amend "should be freely given unless the proposed amendments plainly lack merit or would cause the nonmoving party to suffer prejudice or unfair surprise" (Bastian v State of New York, 8 AD3d 764, 765 [3d Dept 2004]). The determination of whether to grant leave to amend a pleading is left to the sound discretion of the Court (see generally Eddy v White, 304 AD2d 959 [3d Dept 2003]; Ferran v Williams, 281 AD2d 819 [3d Dept 2001], lv dismissed 97 NY2d 653 ). In addressing an application to amend, the Court should consider whether there would be any prejudice to the opposing party; the effect, if any, an amendment would have on the orderly prosecution of the action; whether there was undue delay in seeking the amendment; and whether the proposed amendment is palpably improper or insufficient as a matter of law (see e.g. Nunez v State of New York, UID No. 2002-030-525 [Ct Cl, Scuccimarra, J., June 26, 2002]). Leave should be denied in situations where the proposed amendment lacks merit as a matter of law (see Bastian, 8 AD3d at 765).
Claimant has proposed only a few additional allegations with respect to the four causes of action originally asserted in Claim No. 127218. Specifically, claimant proposes adding language which clarifies that the allegedly wrongful conduct was perpetrated by defendant's agents (employees) instead of by the State as an entity.(10) Claimant also indicates that the conduct alleged in Claim No. 127218 is similar to the conduct previously complained of in Claim No. 124125. Amendment of Claim No. 127218 to include these clarifications is unnecessary, as they are merely amplifications of the pleading which can easily be addressed in a bill of particulars. Accordingly, claimant's motion is denied to the extent he seeks to include additional allegations with respect to the four original causes of action.
However, claimant also seeks permission to include two additional causes of action based upon defendant's failure to adjudicate the disciplinary matter (presumably instituted against Inmate Goodson) which resulted from the July 2, 2014 attack upon claimant. Claimant alleges that lack of such an adjudication constitutes violations of his due process rights under both the State and Federal Constitutions (fifth cause of action) as well as violations of his equal protection rights under both Constitutions (sixth cause of action). The Court of Claims has no jurisdiction to consider Federal Constitutional claims, including civil rights violations brought pursuant to 42 USC § 1983 (see e.g. Brown v State of New York, 89 NY2d 172, 184-185 ). Moreover, because claimant has other adequate remedies - in the form of intentional torts in this Court or actions brought in Federal Court - this Court need not recognize a tort cause of action under the State Constitution (see Martinez v City of Schenectady, 97 NY2d 78 ). Claimant's proposed amendment to include the two additional causes of action for constitutional violations lacks merit as a matter of law. Accordingly, the cross motion to amend the claim is denied.
Claimant also cross-moves to compel disclosure. As defendant correctly notes, "[s]ervice of a notice of motion [to dismiss] under rule 3211 . . . stays disclosure until determination of the motion unless the court orders otherwise" (CPLR 3214 [b]). Although defendant's motion to dismiss has now been resolved in its favor with respect to the cause of action based upon allegations as originally asserted in Claim No. 127217, claimant's cross motion to compel seeks disclosure of items which may be relevant to the causes of action based upon allegations as originally set forth in Claim No. 127218. Accordingly, the cross motion to compel is adjourned to November 22, 2017 in order to allow defendant an opportunity to respond to the cross motion on the merits. Defendant shall file and serve its answering papers by November 12, 2017. Claimant shall file and serve reply papers, if any, by November 20, 2017.In conclusion, defendant's motion is granted to the extent that the causes of action based upon allegations originally set forth in Claim No. 127217 are dismissed. However, the causes of action based upon allegations originally set forth in Claim No. 127218 remain pending under the previously consolidated Claim No. 127217.(11) Claimant's cross motion is denied to the extent it seeks to amend the consolidated Claim No. 127217. However, that portion of claimant's cross motion which seeks to compel disclosure is adjourned to November 22, 2017. The parties shall submit responding and reply papers within the time limitations as set forth herein.
September 28, 2017
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on defendant's motion and claimant's cross motion:
1) Notice of Motion filed on May 22, 2017; Affirmation of James E. Shoemaker, AAG, dated May 19, 2017, and attached exhibits.
2) Notice of Cross Motion filed on June 26, 2017; Affirmation of Douglas Walter Drazen, Esq., dated June 19, 2017, and attached exhibits; Affidavit of Emilio J. Santana, sworn to June 19, 2017, and attached exhibits.
3) Affirmation in Opposition of James E. Shoemaker, AAG, dated July 18, 2017, and attached exhibits.Filed Papers: Claim No. 127217 filed on December 16, 2015; Verified Answer filed on January 13, 2016; Claim No. 127218 filed on December 16, 2015; Verified Answer filed on January 13, 2016.
2. Affirmation of Assistant Attorney General (AAG) James E. Shoemaker, dated May 19, 2017, in Support of Motion, Exhibit B at 3.
3. Id., Exhibit C.
4. Claim No. 127218, ¶ 5 and 5 (a).
5. A notice of intention to file a claim must "set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated" (Court of Claims Act § 11 [b]).
6. The Court notes that in his affidavit, claimant objects to defendant's counsel's citation of case law in his affirmation in support of the motion to dismiss. Specifically, claimant argues that such conduct "gives the defense an unfair advantage with this Court, as . . . the motion is heard on submission, not oral argument . . . [Claimant] also believe[s] it gives the defendant an unfair advantage with any appellate court, as such citations and argument that are not supposed to appear in an appellate record, will appear" (Affidavit of Emilio J. Santana, in Opposition to Motion and in Support of Cross Motion, sworn to June 19, 2017, ¶ 50). This argument is not persuasive. Claimant is correct in asserting that "affidavits are for the facts and briefs for the law" (Siegel, NY Prac § 246 at 429, n 6 [5th ed 2011]). However, this Court finds that defendant's citation to the law in counsel's affirmation rather than a separate brief has not caused claimant any prejudice. Notwithstanding that this motion was heard on submission, counsel for claimant was not precluded from submitting a brief (both in opposition to defendant's motion and in support of claimant's motion) at the same time he served the cross motion (see Uniform Rules for the Court of Claims [22 NYCRR] § 206.9 [b]).
7. Affidavit of Emilio J. Santana, in Opposition to Motion and in Support of Cross Motion, sworn to June 19, 2017, Exhibit C.
8. Id., Exhibit B
9. Defendant's counsel argues that the proposed amended claim which is dated May 5, 2015 suffers from the same infirmities as Claim No. 127217. Counsel for defendant is correct in his assertion that the proposed amended claim attached to claimant's affidavit as part of Exhibit B predates Claim No. 127217. It also appears that this proposed claim was submitted both in support of claimant's cross motion to amend and in opposition to defendant's motion to dismiss Claim No. 124125. However, in his affidavit, claimant specifically notes that he has attached his prior cross motion papers in an effort to show that defendant previously had knowledge of the actual factual allegations which form the basis for Claim No. 127217. The proposed amended claim submitted in support of the current cross motion to amend is attached to claimant's affidavit as part of Exhibit J and was executed June 19, 2017. Notably, defendant has not addressed the substance of this proposed amended claim.
10. Presumably this allegation is in response to defendant's argument that "the State is an entity that is not capable of forming the requisite intent to cause . . . emotional harm" (Affirmation of AAG James A. Shoemaker, dated May 19, 2017, in Support of Motion, ¶ 18).
11. Ironically, the consolidated Claim No. 127217 now consists of only the causes of action originally asserted in Claim No. 127218.