Defendant's pre-answer motion to dismiss granted in part. Causes of action sounding in federal constitutional tort dismissed for lack of jurisdiction, and cause of action sounding in intentional infliction of emotional distress dismissed as untimely. Cause of action for negligent infliction of emotion distress survives inasmuch as defendant failed to address that cause of action in the motion.
|Claimant short name:||PINTO|
|Footnote (claimant name) :|
|Defendant(s):||HON. TERRY WILHELM AND THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||PAMELA J. GABIGER, ESQ.|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Christina Calabrese, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 9, 2020|
|See also (multicaptioned case)|
Claimant filed this claim seeking compensation for the alleged violation of his right to bear arms under the Second Amendment to the United States Constitution. Defendant now moves to dismiss the claim for lack of jurisdiction. Claimant opposes the motion.
The claim alleges that on September 4, 2019, Judge Terry Wilhelm of the Greene County Family Court improperly signed an Order of Protection that was based on a falsified petition, which led to the "Saratoga Police burst[ing] upon [claimant's] property" later that day and confiscating claimant's firearms pursuant to the Order of Protection in violation of his Second Amendment rights (Claim No. 134562, ¶ 4). The claim alleges that claimant had been "forced into Greene County Family Court . . . even though . . . the same case was already pending in Saratoga Family Court," and that Judge Wilhelm was aware of the Saratoga County proceeding and decided " 'to hold a trial anyway' " (id.). The claim alleges that due to the wrongful confiscation of his firearms, claimant "is unable to protect himself as a disabled veteran" and that he suffered severe shock, fright and emotional distress" (id.). The claim alleges causes of action sounding in violation of claimant's Second Amendment rights, intentional infliction of emotional distress, and negligent infliction of emotional distress (see id. at ¶¶ 5-6). Finally, the claim alleges that claimant was subjected to discrimination based on sex in violation of his federal rights on September 25, 2019, when claimant's "windshield was smashed" while he was at a court appearance, and the police and district attorney did not investigate the incident, which they would have done had the victim of such an incident been female (see id. at ¶ 7).
Defendant moves to dismiss the claim on jurisdictional grounds, arguing that the claim was untimely served on the Attorney General more than 90 days after the claim accrued (see Calabrese Affirmation, ¶¶ 5-8), and that the Court lacks jurisdiction over causes of action sounding in federal civil rights violations (see id. at ¶ 9). In opposition, claimant argues that defendant's motion must be denied because "there are ongoing damages after September 4, 2019 because [claimant] is still unable to obtain his pistol license," and "he is a disabled veteran and unable to protect himself" (Gabiger Affirmation in Opposition, ¶ 4). Claimant clarifies that "it was on September 25, 2019 that [claimant] was in Greene County Family Court and advised Judge Wilhelm that the same case was already pending in Saratoga County and Judge Wilhelm told him that he was going to hold a trial anyway" (id. at ¶ 5).
As an initial matter, the claim insofar as it asserts violations of claimant's right to bear arms under the Second Amendment to the United States Constitution and his right to equal protection under the Fourteenth Amendment to the United States Constitution - based on his allegation of a "Federal violation" due to "discrimination based upon his sex" (Claim No. 134562, ¶ 7) - must be dismissed inasmuch as this Court lacks jurisdiction over federal constitutional claims, which must be brought in federal court pursuant to 42 U.S.C. § 1983 (see Brown v State of New York, 89 NY2d 172, 184-185 ; Lyles v State of New York, 2 AD3d 694, 696 [2d Dept 2003], affd 3 NY3d 396 ).
With respect to the remaining claims for intentional infliction of emotional distress and negligent infliction of emotional distress, such claims must be filed and served upon the Attorney General within 90 days of their accrual (see Court of Claims Act §§ 10 , [3-b]). It is well established that the filing and service requirements of the Court of Claims Act are jurisdictional in nature, and that the failure to timely serve the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 ; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 ; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]).
Defendant asserts that the claim accrued on September 4, 2019, and argues that the cause of action sounding in intentional tort is untimely under Court of Claims Act § 10 (3-b) because it was served on the Attorney General on January 22, 2020, more than 90 days after its accrual date (see Calabrese Affirmation, ¶ 6, Exhibit A).(1) A claim in the Court of Claims generally accrues when claimant's damages are reasonably ascertainable (see Augat v State of New York, 244 AD2d 835, 836 [3d Dept 1997], lv denied 91 NY2d 814 ). Although claimant asserts in opposition to the motion that claimant "is still unable to obtain his pistol license" and "is a disabled veteran and unable to protect himself" (Gabiger Affirmation, ¶ 4), which could be construed as arguing that there is a "continuing harm" with regard to his Second Amendment rights (see Davis v Rosenblatt, 159 AD2d 163, 168 [3d Dept 1990], appeal dismissed 77 NY2d 834 , appeal dismissed 79 NY2d 822 , appeal denied 79 NY2d 757  [action cannot be barred by limitations period where it alleges a "continuing harm (that) continuously accrues"]; Shannon v MTA Metro-N. R.R., 269 AD2d 218, 219 [1st Dept 2000] [continuing harm doctrine available for claims alleging intentional infliction of emotional distress]), claimant does not argue and the claim does not allege a continuing harm with regard to his intentional infliction of emotional distress claim. Thus, claimant's intentional infliction of emotional distress claim accrued on September 4, 2019, the date Judge Wilhelm allegedly signed the Order of Protection that resulted in claimant's firearms being confiscated later that day. Inasmuch as the claim was served on January 22, 2020, which was 140 days after the September 4, 2019 accrual date for the claim's intentional infliction of emotional distress cause of action, the claim was untimely served with regard to that cause of action, requiring dismissal of the cause of action for lack of jurisdiction.
However, the claim's negligent infliction of emotional distress cause of action survives defendant's motion to dismiss inasmuch as defendant has failed to address that cause of action in its motion papers.
Accordingly, it is
ORDERED, that defendant's motion number M-95736 is GRANTED IN PART, to the extent that the federal constitutional tort and intentional infliction of emotional distress causes of action are hereby DISMISSED; and it is further
ORDERED, that defendant's motion number M-95736 is otherwise DENIED.
October 9, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 134562, filed March 4, 2020;
2. Notice of Pre-Answer Motion to Dismiss, dated February 14, 2020;
3. Affirmation of Christina Calabrese, AAG, in Support of Pre-Answer Motion to Dismiss, February 14, 2020, with Exhibit A;
4. Affirmation of Pamela Gabiger in Opposition to Motion to Dismiss, dated February 26, 2020.
1. The copy of the claim appended to defendant's motion as Exhibit A appears to be erroneously date stamped January 22, 2019.