New York State Court of Claims

New York State Court of Claims
BAKHCHOUCH v. STATE OF NEW YORK, # 2021-053-524, Claim No. 133398, Motion No. M-96558

Synopsis

Pro se claimant brought a claim alleging damages for the State's failure to permit him to participate in Ramadan Fasting during his incarceration. The State's motion to dismiss the claim for lack of jurisdiction as untimely served is granted. The Court also finds that the claim must be dismissed for a lack of subject matter jurisdiction as Correction Law 610 does not provide for a cause of action for money damages in the Court of Claims.

Case information

UID: 2021-053-524
Claimant(s): HERMID EL BAKHCHOUGH aka HAMID EL BAKHCHOUCH
Claimant short name: BAKHCHOUCH
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 133398
Motion number(s): M-96558
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: HERMID EL BAKHCHOUGH aka HAMID EL BAKHCHOUGH, Pro Se
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
BY: Darren Longo, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 27, 2021
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant Hermid El Bakhchough AKA Hamid El Bakhchough(1) alleges in claim no. 133398 that he was not allowed to participate in Ramadan Fasting and was denied a Sohor fasting bag of food on June 6, 2018, while incarcerated at Gowanda Correctional Facility (Gowanda). Defendant moves to dismiss the claim on jurisdictional grounds for being untimely served. Claimant does not oppose the motion.

In order to commence an action against the State of New York in the Court of Claims, a claim must be filed and a copy served upon the Attorney General personally or by certified mail, return receipt requested, within ninety (90) days of accrual of the claim, unless within the same time period, a notice of intention to file a claim is served personally or by certified mail, return receipt requested, in which event the claim must be filed and served within two (2) years of accrual of a claim based on negligence or within one (1) year of accrual of an intentional tort claim (Court of Claims Act 10 [3], 10 [3-b] and 11 [a] [i]). Pursuant to Court of Claims Act 11 (a) (i), service by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general.

The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to comply with the service requirements of the Court of Claims Act deprives the Court of jurisdiction, requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [1st Dept 1984], app denied 64 NY2d 607 [1985]). Defendant argues that neither a notice of intention nor a claim was served upon the Attorney General within ninety days of accrual of the claim.

A copy of the claim is annexed to defendant's motion papers. This copy of the claim indicates that it was served on the attorney general on July 24, 2019. Also attached to defendant's motion papers is a copy of claimant's notice of intention to file a claim, together with a copy of the envelope in which the notice of intention was served. These indicate that the notice of intention was served on the attorney general on September 12, 2018. According to claimant's notice of intention, the incident occurred at Gowanda on June 6, 2018 in the month of Ramadan. Assuming an accrual date of June 6, 2018, claimant had ninety days or until September 4, 2018, within which to serve the attorney general with a notice of intention to file a claim or the claim. As neither the notice of intention nor the claim was served within ninety days of June 6, 2018, defendant moves for dismissal of the claim.

Defendant's argument would be persuasive if the only conduct complained of occurred on June 6, 2018. According to the notice of intention, however, claimant was not permitted to participate in the Ramadan fasting, denied a Sohor fasting bag of food, and deprived the Eid-dul-Fitra for the remaining ten day period of Ramadan. Assuming this ten day period began on June 6, 2018 and extended through June 15, 2018, then the claim insofar as it is based on conduct which occurred on June 14, 2018 or on June 15, 2018 would be timely as the notice of intention served on September 12, 2018, was served within ninety days of these two last accrual dates.

Accordingly, the claim is dismissed to the extend that the claim asserts causes of action which accrued more than ninety days before September 12, 2018, when claimant's notice of intention was served.

Further, although not specifically raised by defendant, this Court may address sua sponte a lack of subject matter jurisdiction at any time as it relates to the competence of the Court to consider the matter before it (Caci v State of New York, 107 AD3d 1121 [3d Dept 2013]; Erie Blvd. Hydropower, LP v State of New York, 90 AD3d 1292 [3d Dept 2011]). Thus, if this Court concludes that it does not have subject matter jurisdiction over the claim, then the Court may dismiss the claim.

Here, by claim no. 133398, claimant is seeking to recover $4000 for the alleged denial of his right to practice his religious beliefs. At best, the claim very generally asserts a cause of action pursuant to Correction Law 610 and/or a constitutional claim.

Correction Law 610 (1) provides that:

"[a]ll persons who may have been or may hereafter be committed to or

taken charge of by any of the institutions mentioned in this section, are

hereby declared to be and entitled to the free exercise and enjoyment of

religious profession and worship, without discrimination or preference."

Correction Law 610 (3) provides that:

"[t]he rules and regulations ... shall recognize the right of the inmates to

the free exercise of their religious belief, and to worship God according to

the dictates of their consciences ... In case of a violation of any of the

provisions of this section any person feeling himself aggrieved thereby

may institute proceedings in the supreme court of the district where such

institution is situated, which is hereby authorized and empowered to enforce

the provisions of this section." (Corrections Law 610 [3]).

Correction Law 610 does not provide for a cause of action for money damages in the

Court of Claims, but instead calls for an Article 78 proceeding in state supreme court. As the Court of Claims has no jurisdiction over a Correction Law 610 cause of action, any such cause of action must be dismissed (Alsaifullah v State of New York, 166 AD3d 1426 [3d Dept 2019]). Another possible cause of action is a federal constitutional cause of action for free exercise of religion. A federal constitutional claim, however, may not be asserted in the Court of Claims because the State of New York is not a "person" within the meaning of 42 USC 1983 (Oppenheimer v State of New York, 152 AD3d 1006 [3d Dept 2017]). Finally, with respect to any potential state constitutional claim, such a claim is "barred when a claimant has an alternative legal remedy to protect his or her constitutional rights" (Deleon v State of New York, 64 AD3d 840, 840 [3d Dept 2009], lv denied 13 NY3d 712 [2009]; Martinez v City of Schenectady, 97 NY2d 78 [2001]). Here, claimant could assert a federal constitutional claim under 42 USC 1983 in federal court or a Correction Law 610 claim in state supreme court. Thus, under these circumstances, neither a federal nor a state constitutional claim is available in this Court (Oppenheimer v State of New York, supra at 1009).

As this Court does not have subject jurisdiction over the claim, claim no. 133398 is dismissed in its entirety.

May 27, 2021

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims

The following were read and considered by the Court:

1. Notice of motion and affirmation of Assistant Attorney General Darren Longo, Esq. with annexed Exhibits A-C.


1. The claim was filed in the name of Hermid El Bakhchough. Claimant signs his name, however, as Hamid El Bakhchough.