Defendant's motion to dismiss 7 of claim's 11 causes of action is granted and claimant's cross-motion for summary judgment is denied.
|Claimant short name:||GREEN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||SHAWN GREEN
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
By: Anthony Rotondi, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 28, 2018|
|See also (multicaptioned case)|
Defendant moves to dismiss 7 of the claim's 11 causes of action because "the Court lacks subject matter jurisdiction over various causes of action and/or various causes of action fail to state a cause of action." Claimant opposes the defendant's motion to dismiss and cross-moves for "summary judgment in favor of claimant as to liability." Defendant opposes the claimant's cross-motion for summary judgment.
The claim was served on the Attorney General on July 12, 2017 and contains 11 causes of action. Each of the 7 challenged causes of action will be considered in turn.
The claim's first cause of action alleges that claimant was wrongfully confined from "December 22, 2016 to April 11, 2017" as a result of an inmate disciplinary hearing determination. Claimant was found guilty at the disciplinary hearing of charges set forth in a misbehavior report alleging that claimant violated a direct order, created a disturbance and made threats.
Court of Claims Act 10 (3) and (3-b) require that a cause of action for wrongful confinement, whether based on intentional or unintentional conduct by defendant, be served upon the attorney general within ninety days after the accrual of such claim.
A claim for wrongful confinement accrues on "the date on which [claimant's] confinement terminated" (Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 ; Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011]).
The claimant's wrongful confinement cause of action accrued on April 11, 2017 and the claim was not served on the Attorney General until July 12, 2017, more than ninety days after accrual.
Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 ).
The claim's first cause of action for wrongful confinement is dismissed as jurisdictionally defective pursuant to Court of Claims 10 (3) and (3-b).
The claim's second cause of action alleges that the disciplinary hearing officer accepted the "spurious" account of the correction officer who wrote the misbehavior report as "substantial evidence" of the charges even though "no employee in the vicinity . . . vouchered about the occurrence." The claimant argues that this constitutes a failure to conduct the disciplinary hearing in an "impartial manner."
As with the claim's first cause of action, the claim's second cause of action alleging wrongful confinement accrued more than ninety days before it was served and is untimely. The claim's second cause of action is dismissed as jurisdictionally defective pursuant to Court of Claims 10 (3) and (3-b).
The claim's third cause of action is based upon an inmate lost property claim.
Court of Claims Act 10 (9) provides as follows:
"A claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy."
Claimant alleges that his administrative remedy was exhausted on March 7, 2017. The claim was filed on July 12, 2017, more than "one hundred twenty days after the date on which the inmate has exhausted such remedy."
The Court lacks jurisdiction over the inmate personal property cause of action alleged in the claim and claimant's third cause of action is dismissed.
The claim's sixth cause of action alleges that defendant negligently investigated the claimant's inmate personal property claim set forth in the third cause of action. New York does not recognize a cause of action for negligent investigation (Brown v State of New York, 45 AD3d 15, 26 , lv denied 9 NY3d 815 ; Russ v State Empls. Fed. Credit Union [SEFCU], 298 AD2d 791, 793 [3d Dept 2002]).
The claim's sixth cause of action fails to state a cause of action and is dismissed.
The claim's eighth cause of action alleges a violation of the free speech protection set forth in the New York State Constitution (Article I, § 8).
The Court of Appeals has recognized a narrowly defined cause of action for a state constitutional tort in the Court of Claims with respect to "violation of the Equal Protection and Search and Seizure Clauses of the State Constitution" (Brown v State of New York, 89 NY2d 172, 188 ).
Subsequent decisional law instructs that "no such claim will lie where the claimant has an adequate remedy in an alternate forum" (Shelton, 61 AD3d at 1151; see Martinez v City of Schenectady, 97 NY2d 78, 83-84 ; Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 ).
Claimant could have raised state constitutional claim in the context of an Article 78 proceeding in Supreme Court (see Bullard v State of New York, 307 AD2d 676, 678-679 [3d Dept 2003]) where incidental money damages were potentially available (see Gross v Perales, 72 NY2d at 237; CPLR § 7806).
The claim fails to state a cause of action in the Court of Claims for violation of claimant's state constitutional right to free speech and the claim's eighth cause of action is dismissed.
The claim's ninth cause of action alleges "biasness" of a hearing officer in a disciplinary hearing commenced on May 26, 2017 and further alleges that the resulting disciplinary determination was not based on substantial evidence. The cause of action does not allege wrongful confinement as a result of the determination and seeks $1,500 for "breach of duty."
Court of Claims Act 11 (b) provides that:
"The claim shall state 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."
A claim against the State is permissible only as a result of the State's waiver of sovereign immunity and the statutory requirements conditioning suit must therefore be strictly construed (Kolnacki v State of New York 8 NY3d 277, 280 ). As set forth above, the Kolnacki court noted that the requirements of section 11 (b) are "substantive conditions upon the State's waiver of sovereign immunity" (quoting Lepkowski v State of New York, 1 NY3d 201, 207 ) and that the failure to satisfy any of the conditions is a jurisdictional defect (Kolnacki, 8 NY3d at 280-281). The Kolnacki decision stresses that "nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary" (Kolnacki, 8 NY3d at 281).
The standard of review in assessing whether a claim complies with section 11 (b) as to adequately stating the nature of the claim is well-settled:
"What is required is not absolute exactness, but simply a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State. In short, substantial compliance with section 11 is what is required . . . . Conclusory or general allegations of negligence that fail to adduce the manner in which the claimant was injured and how the State was negligent do not meet its requirements" (Heisler v State of New York, 78 AD2d 767, 768 [4th Dept 1980]; see Cendales v State of New York, 2 AD3d 1165, 1167 [3d Dept 2003]; Sega v State of New York, 246 AD2d 753, 755 [3d Dept 1998], lv denied 92 NY2d 805 ).
The strict pleading requirements of Court of Claims Act 11 (b) were reiterated in Rivera v State of New York (52 AD3d 1075 [3d Dept 2008]):
"Statutory conditions placed on claims against defendant must be strictly construed, mandating a dismissal for lack of jurisdiction if the claim does not meet the substantive pleading requirements found in Court of Claims Act § 11 (b)."
The Rivera court, quoting Lepkowski (1 NY3d at 208) reminded that:
"The Court of Claims Act does not require [defendant] to ferret out or assemble information that section 11 (b) obligates the claimant to allege."
The Court finds that the ninth cause of action in the claim fails to allege facts demonstrating "biasness" on the part of the hearing officer and lacks "sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances" (Heisler, 78 AD2d at 768 ).
Claimant has failed to comply with the substantive pleading requirements of section 11 (b) of the Court of Claims Act and the Court therefore lacks jurisdiction over the ninth cause of action in the claim.
Additionally, the jurisdiction of the Court of Claims is invoked where money damages are the essential object of the claim, unlike an instance where the principal claim is equitable in nature (such as to review action or inaction by a state agency), with monetary relief being incidental to the principal claim (see Harvard Fin. Servs. v State of New York, 266 AD2d 685, 685 [3d Dept 1999]; Matter of Gross v Perales, 72 NY2d 231, 236 ).
In City of New York v State of New York (46 AD3d 1168, 1169-1170 [3d Dept 2007], lv denied 10 NY3d 705 ), the court explains that:
"Two inquiries must be made to determine if the Court of Claims has subject matter jurisdiction. As that court has 'no jurisdiction to grant strictly equitable relief' (Psaty v Duryea, 306 NY 413, 416 ), but may grant incidental equitable relief so long as the primary claim seeks to recover money damages in appropriation, contract or tort cases (see Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 ), 'the threshold question is "[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim"' (Madura v State of New York, 12 AD3d 759, 760 , lv denied 4 NY3d 704 , quoting Matter of Gross v Perales, 72 NY2d 231, 236 ). The second inquiry, regardless of how a claimant categorizes a claim, is whether the claim would require review of an administrative agency's determination--which the Court of Claims has no subject matter jurisdiction to entertain (see Hoffman v State of New York, 42 AD3d 641, 642 ), as review of such determinations are properly brought only in Supreme Court in a CPLR article 78 proceeding (see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 )."
Here, claimant challenges the defendant's administrative determination as a "breach of duty" and as lacking substantial evidence. The claimant's remedy for an alleged lack of substantial evidence to support an administrative determination is a CPLR Article 78 challenge to the determination.
The claim's ninth cause of action is dismissed.
Finally, the claim's tenth cause of action alleges the "incompetentcy of institutional claims investigated." As set forth above, New York does not recognize a cause of action for negligent investigation (Brown v State of New York, 45 AD3d 15, 26 , lv denied 9 NY3d 815 ; Russ v State Empls. Fed. Credit Union [SEFCU], 298 AD2d 791, 793 [3d Dept 2002]).
The tenth cause of action in the claim is dismissed.
Next, claimant's cross-motion for summary judgment is denied. "A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]; Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 31 AD3d 877 [3d Dept 2006]).
Claimant has failed to meet his initial burden because he has failed to submit competent admissible evidence showing that he is entitled to judgment, as a matter of law, on any of the remaining causes of action. The claimant's submissions simply re-state, in a conclusory manner, the allegations of the claim.
For all of the foregoing reasons, the defendant's motion to dismiss is granted as to the first, second, third, sixth, eighth, ninth and tenth causes of action contained in the claim.
The claimant's cross-motion for summary judgment is denied.
February 28, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered: 1. Defendant's Notice of Motion to Dismiss, filed October 18, 2017;
2. Affidavit of Anthony Rotondi, sworn to October 18, 2017, and attached exhibits;
3. Claimant's Cross-Motion for Summary Judgment, filed November 20, 2017;
4. Affidavit of Shawn Green, sworn to October 30, 2017, and attached exhibits;
5. Affirmation in Opposition of Anthony Rotondi, dated December 5, 2017;
6. Reply Affidavit of Shawn Green, sworn to December 11, 2017.