14B0118 v. State
| Decision Date | 14 February 2019 |
| Docket Number | Motion No. M-93052,Claim No. NONE,# 2019-040-016 |
| Parties | TYRONE CANNON, Din: 14B0118 v. STATE OF NEW YORK |
| Court | New York Court of Claims |
Synopsis
Movant's application to serve and file a Claim late pursuant to CCA § 10(6) denied.
Case information
UID: 2019-040-016 Claimant(s): TYRONE CANNON, Din: 14B0118 Claimant short name: CANNON Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): NONE Motion number(s): M-93052 Cross-motion number(s): Judge: CHRISTOPHER J. MCARTHY Claimant's attorney: Tyrone Cannon, 14B0118, Pro Se Defendant's attorney:LETITIA JAMES
Attorney General of the State of New York
By: Bernard F. Sheehan, Esq., AAG
Third-party defendant's attorney: Signature date: February 14, 2019 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case)
For the reasons set forth below, the application of pro se Movant, Tyrone Cannon, to serve and file a late claim pursuant to Court of Claims Act § 10(6) is denied.
In his proposed Claim attached to his Motion papers, Movant asserts that he is incarcerated at Orleans Correctional Facility (hereinafter, "Orleans"). He further asserts that he was a participant in a Work Release Program and had a job at a milk plant, however, he was laid off from the position due to physical limitations he has (proposed Claim, ¶ 3). Movant states that he searched for another job for weeks but had no luck (id., ¶ 4). On December 28, 2016, a Temporary Release Committee (hereinafter, "TRC") Hearing was held where the TRC found that Movant had been unemployed since October 26, 2016 and that his adjustment to temporary release was poor, therefore, his removal from the Temporary Release Program was recommended (id., ¶ 4, and Ex. C attached to Motion). The Superintendent of the facility approved the determination on January 3, 2017, Movant was removed from the program, and was transferred to Orleans (id., ¶ 4, and Ex. C attached to Motion). Movant asserts that he appealed the determination. Movant was advised by correspondence dated June 8, 2018, that, on June 2, 2018, the decision of the TRC was affirmed as Movant was "found medically unsuitable for work release program" (id., ¶ 7, and Ex. F attached to Motion). The Claim asserts that Defendant: (1) is negligent in improperly imprisoning Movant by revoking his temporary release; (2) has intentionally inflicted emotional distress upon Movant; (3) has discriminated against Movant under the Americans with Disabilities Act (hereinafter, "ADA") due to his disability; and (4) has violated the Federal and New York State Constitutions (id., ¶¶ 2, 7).
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. Since the proposed Claim asserts a cause of action for negligence and for constitutional tort (CPLR § 214[5], a three-year Statute of Limitations), and a cause of action for intentional tort (CPLR § 215[3], a one-year Statute of Limitations), it appears that the proposed Claim is timely made as it appears that the Claim accrued on June 8, 2018 when Movant's appeal was decided (proposed Claim, ¶ 7).
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
Perhaps the most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 [2011], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
Correction Law § 855(9) provides as follows:
Participation in a temporary release program shall be a privilege. Nothing contained in this article may be construed to confer upon any inmate the right to participate, or to continue to participate, in a temporary release program. The superintendent of the institution may at any time, and upon recommendation of the temporary release committee or of the commissioner or of the chairman of the state board of parole or his designee shall, revoke any inmate's privilege to participate in a program of temporary release in accordance with regulations promulgated by the commissioner.
As participation in a temporary release program is a privilege and not a right, it has been held that the "removal of an inmate from participation in a work release program does not constitute 'a violation of any cognizable legal right' " (Sanders v State of New York, UID No. 2005-015-516 [Ct Cl, Collins, J., June 14, 2005], quoting People ex rel. Feliciano v Waters, 99 AD2d 850, 850 [2d Dept 1984]; see Scott v State of New York, UID No. 2005-009-060 [Ct Cl, Midey, J., Nov. 29, 2005]). Therefore, the Court finds and concludes that the proposed cause of action alleging negligence in revoking Movant's temporary release lacks the appearance of merit.
Movant's proposed cause of action asserting intentional infliction of emotional distress lacks the appearance of merit as such causes of action against governmental entities are barred as a matter of public policy (Moore v Melesky, 14 AD3d 757, 761 [3d Dept 2005]; Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]; Brown v State of New York, 125 AD2d 750, 752 [3d Dept 1986], lv dismissed 70 NY2d 747 [1987]).
The Court now turns to Movant's proposed cause of action that Defendant has discriminated against Movant, under the ADA, due to his disability. Assuming, arguendo, that such a claim may be asserted against the State in the Court of Claims (see Carlson v State of New York, 34 Misc 3d 242 [Ct Cl 2011]), to bring a cause of action under the anti-discrimination provision of Title II of the ADA, Movant must establish that "(1) he is a qualified individual with a disability; (2) [he] is being excluded from participation in, or being denied benefits of some service, program or activity by reason of his disability; and (3) the entity providing the service is a public entity" (Dimperio v New York State Dept. of Corrections and Community Supervision, 2015 WL 1383831, *5 [NDNY 2015]). Here, Movant has failed to establish what his disability is or that he is a qualified individual with a disability pursuant to the ADA. Therefore, the Court finds and concludes that this proposed cause of action lacks the appearance of merit.
To the extent that Movant's allegations assert deprivations under the Federal Constitution, no action may be maintained in this Court against the State for alleged Federal constitutional violations (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1151 [3d Dept 2009]; Lyles v State of New York, 194 Misc 2d 32, 35-36 [Ct Cl 2002], affd 2 AD3d 694, 696 [2d Dept 2003], affd on other grounds 3 NY3d 396 [2004]; Matter of Thomas v New York Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723 [3d Dept 1981], affd 56 NY2d 656 [1982]). To the extent that Movant asserts...
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