Defendant's motion to dismiss the claim granted. The claim failed to comply with the pleading requirements of Court of Claims Act § 11(b), thus depriving the Court of subject matter jurisdiction, and it failed to state a cause of action.
|Claimant short name:||D.D.|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK,(2)|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||D.D., 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:||January 30, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State facility, filed this claim that appears to seek compensation for alleged irregularities in his July 11, 2000 sentencing for his June 27, 2000 guilty plea to assault in the first degree. Claimant appears to assert this claim pursuant to Court of Claims Act § 8-b, which addresses claims against the State for unjust conviction (see Claim No. 133321, ¶ 2). Defendant moves to dismiss the claim on the grounds that (1) the Court lacks subject matter jurisdiction over the claim and (2) the claim fails to state a cause of action. Claimant opposes the motion.
The Court will first address defendant's argument that the claim fails to comply with the pleading requirements set forth in Court of Claims Act § 11 (b), as it implicates the subject matter jurisdiction of the Court to entertain the claim. The Court of Claims Act requires that "[t]he claim . . . 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 . . . the total sum claimed" (Court of Claims Act § 11 [b]). The facts set forth in the claim must be 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  [internal quotation marks omitted]). "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 [Court of Claims] section 11 (b) obligates the claimant to allege" (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotation marks and citation omitted]). The failure to comply with the pleading requirements of Court of Claims Act § 11 (b) is a fatal defect in subject matter jurisdiction that requires dismissal of the claim (see Lepkowski, 1 NY3d at 209; see also Kolnacki v State of New York, 8 NY3d 277, 281 , rearg denied 8 NY3d 994 ).
The claim alleges as follows:
"In the sentencing imposed excuseing [sic] an procedural [default] to correct the fundamental unjust incarceration 2017 New York Senate bill No. 7982 New York Two 2017 New York Sect 8 b  [A] [b] [c] [d] [e] [i] [ii] [iii] [F] [G] [i] [ii]   § 13 [A] plea pg. (7) line 2-5 sentence min pg 3 line 17-19"
(Claim No. 133321, ¶ 2). Attached to the claim are transcripts that reveal that claimant pleaded guilty to assault in the first degree in exchange for a sentence of ten years imprisonment plus five years of postrelease supervision on June 27, 2000. Also attached to the claim is a copy of claimant's February 7, 2011 sentencing as a predicate felony offender in an unrelated criminal proceeding.(3) During the predicate felony hearing, claimant appeared to assert that the five years of postrelease supervision included in his sentence for the assault conviction constituted an unconstitutional "enhanced sentence" that effectively sentenced him to fifteen years in prison instead of the ten years he had agreed to as part of the plea bargain (see id., unnumbered attachments [Hearing/Sentence Transcript, dated Feb. 7, 2011, p. 12, line 23 - p. 13, line 9]).(4)
In support of its motion, defendant argues that the claim must be dismissed for failure to comply with the strict pleading requirements of Court of Claims Act § 11 (b) because "[t]he [c]laim fails to include: 1) the location of the incident; 2) the date of the incident 3) a viable cause of action; 4) the theory of liability and ) any discernable actions on the part of the State (or a State actor) for which the State would be liable" (Rubinstein Affirmation in Support of Motion, ¶ 10). In opposition, claimant argues that defendant's motion to dismiss should be denied because "the State of New York has conceded to the above matter" by "fail[ing] to answer . . . the foregoing matter prior to the above claims being filed with this Court" and thus defendant should be "administratively collateral[ly] estoppe[d]" (D.D. Correspondence, dated December 3, 2019).(5) Even affording claimant the liberal review accorded to submissions by pro se litigants (see Ali v State of New York, UID No. 2006-028-516 [Ct Cl, Sise, J., Feb. 7, 2006]), the claim patently fails to comply with the pleading requirements set forth in Court of Claims Act § 11 (b).
First, the claim fails to include sufficiently definite allegations regarding the "nature" of the claim (Court of Claims Act § 11 [b]). Although claimant's statements during the February 7, 2011 predicate felony hearing seem to indicate that he is challenging the term of postrelease supervision to which he was sentenced in July 2000, the claim itself merely asserts some sort of "procedural" irregularity with respect to a sentence of incarceration. As noted above, "[i]t is axiomatic that the sufficiency of a claim rests solely upon the assertions contained therein, and defendant is not required to go beyond the claim in order to investigate an occurrence or ascertain information that should have been provided pursuant to Court of Claims Act § 11" (Lepkowski v State of New York, 302 AD2d 765, 766 [3d Dept 2003], affd 1 NY3d 201 ; see Gonzalez v State of New York, 25 Misc 3d 1216[A], 2006 NY Slip Op 52704[U], *2 [Ct Cl 2006] ["Defendant is not required to go beyond the claim . . . in order to be able to investigate an occurrence or to obtain information necessary for such an investigation to occur"]), and defendant is not required to "assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski, 1 NY3d at 208). Even upon a review of all of the materials included with the claim, it is simply impossible to determine which constitutional rights claimant believes were violated, any theory of liability, at what point during the 2000 criminal proceeding claimant's constitutional rights were allegedly violated, or what actions by a State actor or actors contributed to the alleged violation of claimant's constitutional rights.(6) Thus, the claim manifestly fails to plead the nature of the claim, and it must be dismissed (see e.g. Dinerman v State of New York, UID No. 2019-038-525 [Ct Cl, DeBow, J., Apr. 15, 2019] [claim that did not "include any factual allegations that would demonstrate the nature of the claim . . . patently fail(ed) to comply with the requirements of Court of Claims Act § 11 (b)"]; Jones v State of New York, UID No. 2018-038-548 [Ct Cl, DeBow, J., May 24, 2018 [claim that failed to adequately plead theory of negligence dismissed as "manifestly noncompliant with Court of Claims Act § 11 (b)"]; Pinckney v State of New York & New York State Justice Center, UID No. 2017-038-516 [Ct Cl, DeBow, J, Feb. 10, 2017 [dismissing claim for failure to comply with Court of Claims Act § 11 (b) where the claim was "devoid of particularization of any actions that were taken, by whom they were taken, and when and where any tortious acts occurred"]).
Moreover, and notwithstanding that the claim demands $21 million in damages plus 19% interest (see Court of Claims Act § 11 [b] ["the total sum claimed"]), the claim fails to include any allegations of the injuries claimant sustained as a result of the alleged "fundamental unjust incarceration" that he allegedly experienced (Claim No. 133321, ¶ 2), and thus is jurisdictionally defective and must be dismissed (see Maldonado v State of New York, UID No. 2019-038-520 [Ct Cl, DeBow, J., Apr. 11, 2019 [dismissal of claim for failure to comply with Court of Claims Act § 11 (b) mandated where "the claim contain(ed) no allegations of the injuries sustained by claimant with regard to any of its causes of action"]; Johnson v State of New York, UID No. 2019-038-501 [Ct Cl, DeBow, J., Jan. 2, 2019 [claim that was "bereft of any allegation of injuries allegedly sustained as the result of the allegedly inadequate food portions" was jurisdictionally defective for failure to comply with Court of Claims Act § 11 (b)]).
Turning to defendant's alternate ground for dismissal, on a motion to dismiss for failure to state a cause of action,
"claimant's claim is liberally construed and all facts asserted therein, as well as its submissions in opposition to defendant's motion, are accepted as true (see CPLR 3026; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 ; see also Nonnon v City of New York, 9 NY3d 825, 827 ; State of New York v Shaw Contract Flooring Servs., Inc., 49 AD3d 1078, 1079 ). Where, as here, the motion is premised upon claimant's failure to state a claim (see CPLR 3211 [a] ) . . . the dispositive inquiry is whether it has a cause of action and not whether one has been stated, i.e., 'whether the facts as alleged fit within any cognizable legal theory' (Leon v Martinez, 84 NY2d 83, 87-88 ; accord Nonnon v City of New York, 9 NY3d at 827)"
(IMS Engrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [3d Dept 2008], lv denied 11 NY3d 706 ). "The allegations of the pleading cannot be vague and conclusory, but must contain sufficiently particularized allegations for which a cognizable cause of action reasonably could be found" (V. Groppa Pools, Inc. v Massello, 106 AD3d 722, 723 [2d Dept 2013]).
"It is well settled that '[t]he test of the sufficiency of a [claim] is whether it gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments' "
(Moore v Johnson, 147 AD2d 621, 621 [2d Dept 1989], quoting Pace v Perk, 81 AD2d 444, 449 [2d Dept 1981]).
The Court of Claims Act provides, in relevant part, that "[i]n order to present [a] claim for unjust conviction and imprisonment, claimant must establish by documentary evidence" three elements (Court of Claims Act § 8-b ). First, claimant must establish that "he has been convicted of one or more felonies or misdemeanors against the state, and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence" (id., § 8-b  [a]). Second, the claimant must demonstrate that "he has been pardoned upon the ground of innocence of the crime or crimes for which he was sentenced and which are the grounds for the complaint," or that
"his judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either he was found not guilty at the new trial or he was not retried and the accusatory instrument dismissed; provided that the judgement of conviction was reversed or vacated, and the accusatory instrument was dismissed, on any of"
several grounds enumerated in the state (id., § 8-b  [b]). Finally, the claimant must show that "his claim is not time-barred by the provisions of" Court of Claims Act § 8-b ). Here, the claim - with its single, bare allegation alluding to an unjust sentence - fails to address any of those three elements. Claimant does not allege in the claim that he served all or part of the sentence that he purports to challenge, that he was innocent of the underlying crime for which he was allegedly illegally sentenced, or that the claim was timely under Court of Claims Act § 8-b (7). In fact, the claim does not appear to be properly brought under Court of Claims Act § 8-b at all, inasmuch as the claim purports to challenge a sentence of imprisonment but not the underlying criminal conviction (see Jones v State of New York, 167 AD3d 1365, 1366 [3d Dept 2018] ["Court of Claims Act § 8-b allows individuals who are unjustly convicted and imprisoned to recover damages from" the State"] [emphasis added]). Because the claim patently fails to meet the requirements of Court of Claims Act § 8-b (3), it must be dismissed for failure to state a cause of action.
Accordingly, it is
ORDERED, that defendant's motion number M-94451 is GRANTED, and claim number 133321 is hereby DISMISSED.
January 30, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 133321, filed July 8, 2019, with unenumerated attachments;
2. Plea Transcript, dated June 27, 2000 (attached to Claim No. 133321);
3. Sentence Transcript, dated July 11, 2000 (attached to Claim No. 133321);
4. Hearing/Sentence Transcript, dated February 7, 2011 (attached to Claim No. 133321);
5. Notice of Motion, dated August 16, 2019;
6. Affirmation of Heather R. Rubinstein, AAG, in Support of Motion, dated August 16, 2019, with Exhibits 1-2);
7. Correspondence of D.D., dated December 3, 2019;
8. Correspondence of Kimberley Broad, Principal Law Clerk, dated December 17, 2019.
1. Inasmuch as claimant alleges in his opposition to the motion to dismiss that he was a victim of a sexual assault as defined in Article 130 of the Penal Law, the caption has been amended in accordance with Civil Rights Law § 50-b (1).
2. The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.
3. Also attached to the claim are several additional documents related to the calculation of claimant's release date, which do not appear directly relevant to the instant claim.
4. The court found claimant's testimony at the predicate felony hearing "incredulous" and declined to credit it and held that "there [were] no constitutional infirmities to the plea" (Claim No. 133321, unnumbered attachments [Hearing/Sentence Transcript, dated Feb. 7, 2011, p. 14, line 21 - p. 15, line 1]).
5. Claimant currently has five claims pending before this Court, including the instant claim, each of which is the subject of a motion to dismiss (see D.D. v State of New York, UID No. 2020-038-509 [Ct Cl, DeBow, J., Jan. 30, 2020]; D.D. v State of New York, UID No. 2020-038-511 [Ct Cl, DeBow, J., Jan. 30, 2020]; D.D. v State of New York, UID No. 2020-038-512 [Ct Cl, DeBow, J., Jan. 30, 2020]; D.D. v State of New York, UID No. 2020-038-513 [Ct Cl, DeBow, J., Jan. 30, 2020]). His December 3, 2019 correspondence opposes all five motions to dismiss on the same ground. Although claimant's opposition is untimely, having been served one day prior to the return date of the instant motion to dismiss, the Court recognizes the interest in all parties being heard and will consider claimant's submission.
6. Defendant correctly argues that this Court lacks jurisdiction over claims alleging violations of the United States Constitution (see Carver v State of New York, 79 AD3d 1393, 1395 [3d Dept 2010], lv denied 17 NY3d 707 ) and that claims alleging violations of the State Constitution "are barred when a claimant has an alternative legal remedy to protect his or her constitutional rights" (DeMaille v State of New York, 166 AD3d 1405, 1408 [3d Dept 2018] [internal quotation marks omitted]).