New York State Court of Claims

New York State Court of Claims
FLEMING v. THE STATE OF NEW YORK, # 2018-034-543, Claim No. 125613, Motion No. M-92148


Derivative claim of ex-wife of allegedly wrongfully convicted man who filed separate 8-b claim dismissed for failure to state a cause of action.

Case information

UID: 2018-034-543
Claimant short name: FLEMING
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 125613
Motion number(s): M-92148
Cross-motion number(s):
Claimant's attorney: EDELMAN & EDELMAN, P.C.
Defendant's attorney: HON. BARBARA D. UNDERWOOD
New York State Attorney General
Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 30, 2018
City: Buffalo
Official citation:
Appellate results:
See also (multicaptioned case) 2018-034-544


Defendant has filed a motion (motion No. M-92139) pursuant to CPLR 3211 (a) (7) to dismiss the claim of Claimant Stacey L. Fleming (claim No. 127157) for failure to state a cause of action. Ms. Fleming has filed a motion (motion No. M-92148) under CPLR 602 (a), seeking a joint trial of her claim, which urges derivative losses, with a claim (claim No.125613) for wrongful incarceration filed by her former husband, Claimant Jonathan Fleming.(1) On consideration the Court will grant Defendant's motion to dismiss claim No. 127157, and deny Claimant's(2) motion for a joint trial as moot.

The following documents have been reviewed:

1. Verified Claim (claim No. 125613), verified February 2, 2015, filed February 5, 2015;

2. Verified Answer, dated March 9, 2015, filed March 11, 2015;

3. Verified Answer, dated April 17, 2015, filed April 28, 2015;

4. Verified Claim (claim No. 127157), verified December 1, 2015, filed December 7, 2015;

5. Verified Answer, dated January 14, 2016, filed January 20, 2016;

6. Notice of Motion (motion No. M-92139), dated April 17, 2018; filed April 19, 2018;

7. Affirmation of Janet L. Polstein, dated April 17, 2018, with attached exhibits;

8. Answering Affirmation of Wayne P. Smith, dated April 24, 2018, filed April 27, 2018, with attached exhibits;

9. Reply of Janet L. Polstein, undated, filed May 9, 2018;

10. Notice of Motion (motion No. M-92148), dated April 18, 2018, filed April 23, 2018;

11. Affidavit of Wayne P. Smith, sworn to April 18, 2018, with attached exhibits;

12. Affirmation in Opposition to Motion to Consolidate, undated, filed May 7, 2018.

In 1989, Jonathan Fleming was indicted by a Kings County grand jury for murder in the second degree.(3) At the conclusion of a jury trial in Supreme Court, Kings County on July 20, 1990, he was found guilty of that charge. Mr. Fleming was subsequently sentenced to a term of incarceration of 25 years to life, and was taken into custody by the Department of Correctional Services on December 7, 1990.(4) On April 8, 2014, Kings County Supreme Court Justice Hon. Matthew D'Emic granted an oral application to have Mr. Fleming's 1990 conviction vacated pursuant to CPL 440.10, based upon newly discovered evidence. The prosecution joined in the motion, and agreed to dismiss the indictment. Mr. Fleming was released from prison on that same date. He then filed claim No. 125613 on February 5, 2015, seeking to recover for his alleged 24-year wrongful incarceration under Court of Claims Act 8-b, the Unjust Conviction and Imprisonment Act of 1984. Mr. Fleming's claim is scheduled for a unified trial of liability and damage issues commencing July 17, 2018.

Claimant married Jonathan Fleming on May 15, 2011, while he was in prison. Her husband filed for divorce in 2015, and a judgment of divorce was entered with the Clerk of the Court in Queens County Supreme Court on February 14, 2018.

Ms. Fleming filed and served claim No. 127157 on December 7, 2015, seeking to recover for loss of consortium arising from the alleged wrongful incarceration of her then-husband, also under section 8-b. The State filed its answer on January 20, 2016, raising the failure to state a cause of action as an affirmative defense (see verified answer, dated January 14, 2016, para "Fifth"), and now urges dismissal on that ground.

CPLR 3211 (a) provides that "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that: . . . (7) the pleading fails to state a cause of action." In assessing a motion to dismiss, the Court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). In so doing "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (id. at 88 [internal quotation marks and citations omitted]). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]).

Defendant contends that the claim fails to state a cause of action because section 8-b does not provide for a derivative claim, that the derivative claim is untimely in any event, and that Ms. Fleming cannot demonstrate a loss of consortium. The Court will address each argument advanced in support of dismissal.

Neither the plain language of the statute nor the

legislative intent support a derivative claim.

"Loss of consortium claims traditionally may be maintained pursuant to such common law torts as negligence" (Goldman v MCL Companies of Chicago, Inc., 131 F Supp 2d 425, 427 [SD NY 2000]). In contrast, "[w]here (as here) a loss of consortium claim is purportedly derived from a statutory claim, courts must examine the statute at issue to determine whether it authorizes a spouse to bring a derivative action" (id.). Here, Mr. Fleming's claim is premised solely on the provisions of section 8-b. Ms. Fleming's cause of action for loss of consortium similarly cites that statute as authority for that derivative relief. That statute, however, does not expressly provide for the recovery of derivative losses, and the Court will next address whether the language of the statute or legislative history would support such a claim.

The Court of Appeals has held that in weighing issues of statutory construction "[t]he guiding principle in such cases is to give effect to the legislative intent and that intent is to be sought first in the words of the statute under consideration" (Alifieris v American Airlines, Inc., 63 NY2d 370, 375-376 [1984]). "Its terms are construed according to their ordinary usage in the context in which they are used (citations omitted) and extrinsic aids are considered only when examination of the words makes the intent ambiguous or unclear" (id. at 376).

Section 8-b establishes a remedy in which those who have been wrongfully convicted can seek redress from the State. The statute provides that "[a]ny person convicted and subsequently imprisoned for one or more felonies or misdemeanors against the state which he did not commit may, under the conditions hereinafter provided, present a claim for damages" (Court of Claims Act 8-b [2]). By its plain language the statute thus identifies the persons entitled to recover as those "convicted and subsequently imprisoned for" crimes they did not commit, but makes no provision for the families of those who were wrongfully imprisoned. Although the Court can find no case authority specifically addressed to whether recovery under section 8-b could extend to spouses, the Appellate Division, Second Department has addressed whether the language of the statute could allow for recovery in juvenile delinquency proceedings. In Webb v State of New York, 18 AD3d 648, 649 (2d Dept 2005), lv denied 6 NY3d 707 (2006), the Second Department declined to extend relief to juvenile delinquents, holding that "[u]nder the plain language of Court of Claims Act 8-b, a placement following an adjudication of juvenile delinquency may not form the basis of a claim for damages against the State for unjust conviction and imprisonment," as "the State did not waive its immunity for this claim." In weighing the question of an implied derivative cause of action this Court must further consider that "[b]ecause this statute creates a new cause of action, it must be strictly construed" (Fudger v State of New York, 131 AD2d 136, 140 [3d Dept 1987], lv denied 70 NY2d 616 [1988]; see also Paris v State of New York, 202 AD2d 482, 483 [2d Dept 1994]). Similarly, a plain reading of the language of section 8-b in no way supports a claim for derivative losses, particularly where strictly construed.

Turning next to the history of section 8-b, there is no indication that the legislature intended that the persons entitled to seek recovery include the spouses of those unjustly convicted. In 1983, the governor asked the Law Revision Commission to study the issue of providing redress for persons convicted for crimes they did not commit (1984 Rep of NY Law Rev Comm). The Commission drafted a report recommending that innocent persons unjustly convicted and imprisoned be permitted to file claims against the State, as well as a proposed bill (id.). The report makes no mention of damages sustained by family members or derivative claims (id.). Similarly, none of the materials comprising the bill jacket make any mention of derivative claims (see e.g. Governor's Approval Mem, Bill Jacket, L 1984, ch 1009).

In interpreting other statutes that provide a private right of action, state and federal courts have commonly declined to recognize those statutes as authorizing loss of consortium claims (see e.g. Reed v Medford Fire Dept., Inc., 806 F Supp 2d 594, 606 [ED NY 2011] ["a loss of consortium claim is a derivative claim that is not viable under Section 1983"]; Murphy v Cadillac Rubber & Plastics, Inc., 946 F Supp 1108, 1125 [WD NY 1996] ["It is clear that federal courts do not recognize such derivative claims based on federal civil rights violations" and "plaintiffs cannot state a claim for loss of consortium under Title VII"]; Mohamed v Marriott Intl., Inc., 905 F Supp 141, 159 [SD NY 1995] ["no loss of consortium claim attaches to the ADA claim"]; Belanoff v Grayson, 98 AD2d 353, 358 [1st Dept 1984] ["The spouse of an employee alleging discrimination under the Executive Law is not a 'person aggrieved' within the meaning of the statute and a cause of action for loss of consortium cannot be stated under the Executive Law"]; Rich v CooperVision, Inc., 198 AD2d 860, 861 [4th Dept 1993] ["The spouse of a victim of alleged age discrimination has no cause of action for a violation of New York's Human Rights Law]; Goldman, supra 131 F Supp 2d at 427 [New York's "whistleblower statute provides a limited right of action, to a particular class of persons, and nowhere invites spouses of such persons to append derivative claims"]; Nielsen v Weeks Marine, Inc., 910 F Supp 84, 89 [ED NY 1995] ["the Jones Act does not provide a cause of action for loss of consortium"]; Spinola v New York Cent. R.R., 33 AD2d 74 [2d Dept 1969] [FELA "confers no cause of action for loss of consortium on the wife of an injured employee"]; Liff v Schildkrout, 49 NY2d 622, 634 [1980] ["a claim for loss of consortium will not be recognized within a wrongful death action in this State"]). A notable exception to the rejection of unauthorized derivative causes of action in statutory claims appear to be Labor Law 240 and 241 (6), which have been interpreted as permitting loss of consortium claims (see e.g. Wright v State of New York, 110 AD2d 1060 [4th Dept 1985] [court erred in dismissing derivative claim for failure of proof in Labor Law 240 and 241 (6) case], affd sub nom. Bland v Manocherian, 66 NY2d 452 [1985]). Still, the Court finds no pattern of interpretation of statutory claims that would favor the recognition of a derivative loss of consortium cause of action by implication.

Based upon a weighing of all of the above the Court rejects Claimant's assertion that section 8-b can support a derivative cause of action for a loss of consortium, and on that basis must dismiss the claim for failing to state a cause of action.

The Court will briefly review the remaining arguments raised by the parties.


Defendant argues that the claim is untimely because Claimant failed to file and serve her claim, or serve a notice of intention to file a claim, within 90 days of Mr. Fleming's release from prison, in accordance with Court of Claims Act 10 (3-b). Section 10 (3-b) provides that claims for intentional torts must be filed and served within 90 days of accrual, unless a notice of intention to file a claim is served upon the Attorney General's Office within that same 90-day period, in which case the time limitation for commencement would extend to one year from accrual. The parties agree that the accrual date for the unjust conviction claim was April 8, 2014, when Mr. Fleming was released from prison. Claimant argues that section 10 (3-b) is not applicable to unjust conviction claims. The Court agrees.

The time provisions of section 10 do not apply to unjust conviction claims brought pursuant to section 8-b (see Gurley v State of New York, 173 Misc 2d 87, 89 [Ct Cl 1997] ["neither the general time limits contained in section 10 nor CPLR article 2 has any application to section 8-b cases"]). Instead, section 8-b expressly provides its own two-year statute of limitations (see section 8-b [7]). The legislative history for section 8-b similarly supports that the time limitations within that statute should be deemed separate and distinct from those recited in section 10. A memorandum from the Attorney General regarding the legislation noted that

"difficulties could arise if the Court were to attempt to integrate these provisions with those of Section 10 of the Court of Claims Act, which concern time limitations in general. As long as the Court does not try to read section 10 into the new section 8-b, the legislative intent can be achieved"

(Attorney General's Mem, Dec. 17, 1984, Bill Jacket, L 1984, ch 1009).

Based upon the above the Court finds that this claim, filed within two years of accrual, is timely.

While the challenge to the validity of Claimant's marriage would present

a question of fact, the timing of the marriage precludes recovery.

Defendant argues that Ms. Fleming's claim fails to state a cause of action because she cannot demonstrate that she sustained a loss of consortium. Claimant argues that the extent of her damages is a question of fact that cannot be resolved upon a motion to dismiss. At this stage of the proceedings, the Court is not in a position to assess the validity of Claimant's marriage (see Matter of Seidel v Crown Indus., 132 AD2d 729, 730 [3d Dept 1987] [to rebut the strong presumption that a marriage was valid, the challenging party must disprove by clear and convincing evidence every reasonable possibility which would validate the marriage]). Clearly, however, the burden of challenging the validity of the marriage rests with the State, not Ms. Fleming (see id.).

Nevertheless, Claimant's allegations regarding the timing of her marriage to Mr. Fleming serve to undermine her cause of action. "Consortium represents the martial partners' interest in the continuance of the marital relationship as it existed at its inception" (Anderson v Lilly & Co., 79 NY2d 797, 798 [1991] [internal quotation marks and citations omitted]). "It is by now well settled that a cause of action for loss of consortium does not lie if the alleged tortious conduct and resultant injuries occurred prior to the marriage" (id.; see also, Mehtani v New York Life Ins. Co., 145 AD2d 90, 95 [1st Dept 1989], lv denied in part and dismissed in part 74 NY2d 835 [1989] ["damages for loss of consortium are not recoverable where, as here, the alleged wrongful conduct preceded the marriage"]; Briggs v Butterfield Mem. Hosp., 104 AD2d 626 [2d Dept 1984] ["An action for loss of consortium cannot be maintained unless the plaintiff was married to the injured person at the time of the actionable conduct"]).

Here, the underlying actionable conduct arose with Mr. Fleming's alleged unjust conviction and initial imprisonment, which took place 21 years before Claimant married him. As a matter of law Ms. Fleming cannot assert a cause of action to recover a loss of consortium arising from that incident. Based on the foregoing, it is hereby

ORDERED, that Defendant's motion to dismiss under CPLR 3211 (a) (7) is granted, and claim No. 127157 is dismissed; and it is further

ORDERED, that Claimant's motion for a joint trial is denied, as moot.

May 30, 2018

Buffalo, New York


Judge of the Court of Claims

1. Mr. Fleming has taken no position on these motions.

2. Hereinafter, references to "Claimant" in this Decision and Order are to Stacey L. Fleming.

3. The details recited in this decision about Mr. Fleming's indictment, trial, conviction, sentence, and release from prison are not included in Ms. Fleming's claim, and are instead derived from Mr. Fleming's claim (No. 125613), which is also assigned to this Court.

4. Now the Department of Corrections and Community Supervision.