|Claimant short name:||GOURDINE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||RICHARD E. SISE|
|Claimant's attorney:||CLARENCE GOURDINE, PRO SE|
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
BY: Carlton K. Brownell, III
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 26, 2021|
|See also (multicaptioned case)|
The following papers were read on Defendant's motion to dismiss pursuant to CPLR 3211:
1. Notice of Motion filed March 16, 2021;
2. Affirmation of Carlton K. Brownell, III dated March 12, 2021 with Exhibits A-E annexed;
3. Affidavit of Clarence Gourdine sworn to April 6, 2021.
Filed papers: Claim
Defendant has moved to dismiss the claim pursuant to CPLR 3211 on the grounds that the claim fails to state a cause of action and for lack of jurisdiction.
The claim is based on allegations that claimant was subjected to acts of racism, oppression and discrimination after he entered the Sex Offender Program and was moved to a new company at Wende Correctional Facility. Claimant alleges that the power, water and lights to his cell were turned off, that he was denied showers, recreation and telephone use by two correction officers working on the company, was called "rape-o" and told he would get nothing while on the company. Claimant maintains that after three months of enduring this treatment he began to file complaints with officials at the correctional facility and in Albany. Claimant alleges that despite his numerous complaints, and after an investigation, that no action was taken. The claim also contains allegations that false disciplinary reports were filed against claimant and that defendant's employees have conspired to keep him in prison by repeatedly denying him parole.
Though the claim does not reference specific constitutional, statutory or common law protections that were violated, the factual allegations implicate a number of possible causes of action. Those causes of action, however, are either not cognizable in this court or are not recognized in New York. To the extent that the claim asserts any federal constitutional claims, the Court of Claims lacks jurisdiction to adjudicate those torts (Bottom v State of New York, 142 AD3d 1314, 1316 [4th Dept 2016]). Furthermore, insofar as the claim involves challenges to grievances filed by claimant, or misbehavior reports claimant contends were retaliatory, any review involving those administrative determinations must be made in the context of a CPLR article 78 proceeding (Blake v State of New York, 145 AD3d 1336, 1337 [3d Dept 2016]). Actions seeking judicial review of steps taken by prison officials regarding the conditions of confinement such as denial of recreation, showers and telephone, are also properly challenged in an article 78 proceeding, or an action in the nature of mandamus (Blake at 1337). Finally, "New York does not recognize a common-law cause of action to recover damages for harassment" (Adeniran v State of New York, 106 AD3d 844, 845 [2d Dept 2013] [citations and internal quotations omitted]) nor does New York "recognize an independent cause of action for civil conspiracy, which may only be asserted to connect actions of separate defendants to an underlying tort" (Kovkov v Law Firm of Dayrel Sewell, PLLC, 182 AD3d 418, 418 [1st Dept 2020]). As there is no action asserted in the claim which may be adjudicated by this court, the claim should be dismissed. The request by claimant that the matter be transferred is beyond the power of this court.
Accordingly, it is
ORDERED, that the motion is granted and the claim is dismissed.
May 26, 2021
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims