Defendant's motion to dismiss in lieu of answer granted for failure to comply with the pleading requirements of Court of Claims Act § 11 (b) and failure to state a cause of action. Claimant's motion for summary judgment and defendant's cross motion denied as moot.
|Claimant short name:||MALDONADO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-93201, M-93235|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||EDWIN MALDONADO, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 11, 2019|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim on October 22, 2018 in which he alleges that various acts of malfeasance by corrections staff at Green Haven Correctional Facility (CF) occurred from May through August 2018. Defendant moves in lieu of answer to dismiss the claim (M-93201), to which claimant does not directly respond. Rather, claimant moves for summary judgment (M-93235), which is opposed by defendant in a cross motion seeking a stay of claimant's motion for summary judgment (CM-93282). Claimant has not filed any papers in opposition to defendant's cross motion.
This rambling and disjointed claim alleges that claimant was to be transferred out of Green Haven CF in "the month of May" after expressing fear for his well-being because he was assaulted by correction officers, that he packed up his property but his transfer was cancelled, that claimant was sexually harassed and threatened by a correction officer, and that an inmate attacked him and burned his cell on May 22, 2018 in retaliation for rejecting the correction officer's sexual advances (see Claim number 132176, ¶ 2). The claim also alleges that when claimant received his property on an unspecified date "a lot of [his] possessions were stolen" (id.). The claim alleges that on June 17, 2018 correction officers called him a "snitch," that he was thereafter attacked by an inmate in the yard, and that he was pepper sprayed and force was used against him (see id.). The claim further alleges that claimant was placed in a disciplinary bullpen on June 18, 2018 along with the inmate who had attacked him the previous day, that correction officers told him to fight with the inmate, that he refused and was subsequently attacked by the inmate, and that he was again pepper sprayed and subjected to force by correction officers. The claim alleges that claimant was thereafter taken to the Special Housing Unit (SHU), where correction officers took his glasses and crushed them on the ground, that claimant was confined in SHU from June 18 through August 2, 2018, and that claimant received the reversal of the Tier III hearing on September 26, 2018. The claim asserts that Green Haven CF employees "conspired to have claimant assaulted, battery, [sic] by mental health I.C.P. inmates, property stolen cell burnt [sic]," that defendant's agents failed to protect him by placing him in a cell "with an assaultive inmate, a day prior from having [sic] violent incident in the yard," that the Department of Corrections and Community Supervision (DOCCS) "created a hostile environment for claimant loss of property, loss of wages, SHU box time from June 18th until August 2, 2018, loss of wages, from June 8, until Sept. 26, 2018" (id.). The claim states that it accrued on June 18, 2018 (see id., ¶ 4), that a notice of intention to file a claim was served on September 13, 2018, and that the claim for the loss of personal property was served within 120 days of the exhaustion of claimant's administrative remedies (see id., ¶ 5). The claim seeks damages in the amount of $1 million.
Defendant argues on its motion seeking dismissal that the claim is jurisdictionally defective because a viable notice of intention was not properly served and thus, that the claim was not timely served and filed (see Rubinstein Affirmation, ¶¶ 3-5), and, alternatively, that the claim is jurisdictionally defective because it does not comply with the substantive pleading requirements of Court of Claims Act § 11 (b).
A claim for personal injuries that were allegedly caused by the unintentional or intentional tort of a state employee must be filed and served upon the Attorney General within 90 days after the accrual of the claim (see Court of Claims Act §§ 10 ; [3-b]), although this deadline will be extended by service upon the Attorney General of a notice of intention to file a claim within that same 90-day period (see id.). Service of a notice of intention by mail must be accomplished by certified mail, return receipt requested (CMRRR) (see Court of Claims Act § 11 [a] [i]). A notice of intention that is served upon the Attorney General by ordinary first class mail is a nullity which fails to extend claimant's time within which to file and serve the claim (see Fulton v State of New York, 35 AD3d 977, 978 [3d Dept 2006], lv denied 8 NY3d 809 ; Crenshaw v State of New York, UID No. 2012-038-575 [Ct Cl, DeBow, J., Oct. 30, 2012]).
The claim appears to assert the following four causes of action or theories of liability. First, that defendant's agents harassed, threatened claimant and induced inmates to attack him on three different dates in May and June 2018. Second, that defendant's agents negligently failed to protect claimant from those three inmate assaults in May and June 2018. Third, that claimant's confinement in SHU was unlawful. Fourth, that defendant should be liable for the loss of claimant's property.
Defendant implicitly acknowledges that the first notice of intention to file this claim was properly served upon the Attorney General by CMRRR, but that it was timely rejected because it was not verified as required by CPLR 3022 (see Rubinstein Affirmation, ¶ 3, Exhibit B). Defendant asserts that the second notice of intention was improperly served by ordinary mail (see id., Exhibit C). Claimant does not dispute these contentions, which find documentary support in defendant's cross motion, and thus, the time within which to file and serve the claim was not extended by either of the notices of intention served by claimant. The claim asserts that it accrued on June 18, 2018, but it complains of unlawful confinement in the SHU until August 2, 2018 and other losses that did not cease until September 26, 2018, and thus, the claim may allege an improper accrual date. The claim that was filed on October 22, 2018 was timely for any alleged acts that occurred within the preceding 90 days, or occurring on or after July 24, 2018. Thus, the allegations contained in the first two causes of action regarding the alleged harassment, assaults and related conduct that occurred in May and June 2018 are untimely and must be dismissed (see Langner v State of New York, 65 AD3d 978 [2d Dept 2009] lv denied 13 NY3d 706 ).
Defendant also contends that the claim does not comply with Court of Claims Act § 11 (b), which requires that a claim for personal injury must both "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" (Court of Claims Act § 11 [b]). Defendant further contends that the cause of action sounding in unlawful confinement in SHU is jurisdictionally defective because it does not allege that defendant's confinement of claimant was not privileged. Defendant asserts that the claim is "replete with conclusory allegations but devoid of factual support," and that "[t]here are no references to what, if any injuries, claimant suffered" (Rubinstein Affirmation, ¶ 9).
To satisfy the "nature of the claim" requirement, the claim must state facts that are sufficiently definite " 'to enable the State . . . 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]). "Although 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]). Failure to comply with the pleading requirements of Court of Claims Act § 11 (b) deprives the Court of Claims of subject matter jurisdiction over the claim (see Czynski v State of New York, 53 AD3d 881, 883 [3d Dept 2008], lv denied 11 NY3d 715 ).
The remaining two causes of action or theories are also jurisdictionally defective under Court of Claims Act § 11 (b) and must be denied. In order to plead a cause of action for unlawful confinement, a claim must allege that defendant intentionally confined claimant, that claimant was aware of and did not consent to the confinement, and that the confinement was not privileged (see Martinez v City of Schenectady, 97 NY2d 78, 85 ; Broughton v State of New York, 37 NY2d 451, 456-457 , cert denied sub nom. Schanbarger v Kellogg 423 US 929 ; see also Nazario v State of New York, 75 AD3d 715, 718 [3d Dept 2010], lv denied 15 NY3d 712 ). The confinement of an inmate is privileged if it was accomplished in accordance with DOCCS regulations (see Lee v State of New York, 124 AD2d 305, 307 [3d Dept 1986]; Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]) or where there has not been a violation of an inmate's right to due process (see Arteaga v State of New York, 72 NY2d 212, 221 ). Here, the claim does not allege or assert that claimant's confinement was not privileged or that there was any violation of DOCCS regulations or due process, and thus it fails to state a cause of action for unlawful confinement. To the extent that claimant is alleging State constitutional violations arising out of his unlawful confinement, the claim lacks any allegations regarding the nature of the constitutional harm. As for the cause of action seeking damages for property loss, the claim is wholly lacking in details such as the date of the loss of claimant's property, the items lost and the value of the loss, such that defendant would be unable to investigate.
Lastly, and notwithstanding that the claim is seeking $1 million in damages, the claim contains no allegations of the injuries sustained by claimant with regard to any of its causes of action, mandating dismissal of the entirety of the claim.
In sum, the claim is not adequately pleaded, and a cause of action for unlawful confinement is not stated. Thus, defendant's motion to dismiss the claim (M-93201) will be granted, claimant's motion for summary judgment and defendant's related cross motion will be denied as moot.
Accordingly, it is
ORDERED, that defendant's motion M-93201 is GRANTED and claim number 132176 is hereby DISMISSED; and it is further
ORDERED, that claimant's motion M-93235 is DENIED; and it is further
ORDERED, that defendant's cross motion CM-93282 is DENIED.
April 11, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 132176, filed October 22, 2018;
(2) Notice of Motion (M-93201), dated November 23, 2018;
(3) Affirmation of Heather R. Rubinstein, AAG, in Support of Motion,
dated November 23, 2018, with Exhibits A-C;
(4) Proof of Service of Defendant's Motion to Dismiss (M-93201) of Francine Broughton,
sworn to November 26, 2018;
(5) Notice of Summary Judgment (M-93235), dated December 3, 2018;
(6) Affidavit of Edwin Maldonado in Support of Motion for Summary Judgment,
sworn to December 3, 2018, with Exhibits A-K;
(7) Notice of Cross Motion (CM-93282), unsigned and dated December 21, 2018;
(8) Affirmation of Heather R. Rubinstein, AAG, in Opposition to Claimant's Motion for
Summary Judgment and/or in Support of Defendant's Cross Motion, unsigned
and dated December 20, 2018;
(9) Proof of Service of Cross Motion Papers by Francine Broughton, sworn to
December 21, 2018.