Green v. State
| Decision Date | 01 June 2016 |
| Docket Number | Cross-Motion No. CM-87939,Motion No. M-87705,# 2016-038-535,Motion No. M-87312,Claim No. 124847 |
| Parties | SHAWN GREEN v. STATE OF NEW YORK |
| Court | New York Court of Claims |
Claimant's motions to compel disclosure and for sanctions and dismissal rendered moot by Court's granting of defendant's motion to dismiss. All aspects of nine causes of action were either untimely or non-compliant with the pleading requirements of Court of Claims Act § 11 (b), except for the assertion of a State constitutional tort, which failed to state a cause of action because claimant had another remedy (Correction Law § 610) for the alleged violations of right of free exercise of religion.
Case information
UID: 2016-038-535 Claimant(s): SHAWN GREEN Claimant short name: GREEN Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 124847 Motion number(s): M-87312, M-87705 Cross-motion number(s): CM-87939 Judge: W. BROOKS DeBOW Claimant's attorney: SHAWN GREEN, Pro se Defendant's attorney:ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Michael T. Krenrich, Assistant Attorney General Third-party defendant's attorney: Signature date: June 1, 2016 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case)
Claimant, an individual incarcerated in a State correctional facility, commenced this claim in which he seeks monetary damages in the amount of $10,285,000.00 for various acts of alleged misfeasance by defendant and its employees. Claimant has made a motion to compel defendant to respond to his discovery demands (motion number M-87312) and a motion for partial summary judgment (motion number M-87705). Defendant opposes both motions, and has cross-moved for dismissal of the claim, which claimant opposes.
The Court turns first to defendant's cross motion to dismiss each of the nine causes of action set forth in the claim. Defendant seeks dismissal of the causes of action on various grounds, and at least one of the grounds asserted by defendant for dismissal of each cause of action is meritorious. Accordingly, defendant's cross motion will be granted and the claim will be dismissed in its entirety, which renders claimant's motions moot.
The first, second, fourth, and fifth causes of action asserted in the claim arise from an inmate misbehavior report and the ensuing disciplinary proceedings and penalty. Defendant seeks dismissal of these causes of action on several grounds, including that they fail to satisfy the jurisdictional pleading requirements of Court of Claims Act § 11 (b) (see Krenrich Affirmation, ¶¶ 7, 13, 14). The Court of Claims Act requires, among other things, that "[t]he claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained" (Court of Claims Act § 11 [b]). Recitation of sufficient facts to satisfy Court of Claims Act § 11 (b) is a "substantive condition[] upon the State's waiver of sovereign immunity" (Lepkowski v State of New York, 1 NY3d 201, 208 [2003]). Allegations of fact 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, at 207, quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). "The Court of Claims Act does not require [defendant] to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (id., at 208). 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, at 209; Kolnacki v State of New York, 8 NY3d 277, 281 [2007]).
The first cause of action alleges that on May 15, 2014, Correction Officer (CO) R. Mitchell intentionally and maliciously issued an inmate misbehavior report to claimant, and that CO Mitchell did so illegally, without authorization of law and out of revenge, and for the purpose of prolonging claimant's confinement (see Claim No.124847, ¶¶ 4-6). The second cause of action asserts that CO Mitchell's actions subjected claimant to SHU confinement "possibly anywhere from between October 4, 2014 and February 4, 2015" without claimant's consent but with his consciousness of the confinement (see id., ¶ 10).1 The fourth cause of action asserts that the disciplinary proceedings that were conducted by Lieutenant J. Spinner upon the misbehavior report were devoid of impartiality, predetermined, and followed by overly severe punishment, which violated "reasonable standards of care which govern general policies on discipline of prisoners' their [sic] entitled to" (id., ¶¶ 17-18), citing certain subdivisions of 7 NYCRR § 250.2 []). The fifth cause of action alleges that claimant's administrative appeal from the disciplinary determination was arbitrarily decided in a pro forma manner, without meaningful review, and it cites 7 NYCRR § 254.8, which is the regulatory provision that outlines the administrative appeal process (see Claim No. 124847, ¶ 23). In these four causes of action, one can recognize assertions that a misbehavior report that was issued improperly on May 15, 2014 "possibly" resulted in unlawful confinement, and that the misbehavior report was decided unfavorably to claimant after an unfair hearing which was affirmed on administrative appeal without meaningful review, but in the absence of factual allegations demonstrating how defendant's employees acted improperly at every step of the disciplinary process, the "nature of the claim" is not sufficiently stated. The Court agrees with defendant's argument that "such conclusory speculations fail to meet the minimal pleading requirements" of Court of Claims Act § 11 (b) (), and thus, the first, second, fourth and fifth causes of action will be dismissed.
Defendant also urges dismissal of claimant's eighth cause of action because it does not comply with Court of Claims Act § 11 (b). This cause of action alleges that since claimant's arrival at Upstate CF, he has been deprived of adequate medical care to treat his diabetes mellitus because unnamed medical professionals are so lacking in knowledge, skills and judgment that their care departs from accepted medical standards, and that their treatment of him has been a substantial cause of his deteriorating condition and development of long-term complications (see Claim No. 124847, ¶¶ 35-39). The pleading fails to state any dates on which claimant did or did not receive treatment, it does not identify the medical personnel involved, and despite a general allegation that the medical director and personnel were aware of an objective clinical measurement of claimant's advancing disease, there is no allegation of what the medical staff did or failed to do with regard to claimant's medical condition. Accordingly, it does not satisfy the pleading requirements of Court of Claims Act § 11 (b) (see Nieves v State of New York, UID No. 2014-038-517 [Ct Cl, DeBow, J., Apr. 30, 2014]), and the eighth cause of action will be dismissed.
Similarly, the ninth cause of action does not comply with Court of Claims Act § 11 (b). It alleges that the individuals in every prior cause of action were employees of defendant and that they "committed tortious acts causing claimant's injury while on duty, which Defendant had/has the ability to control and direct" (Claim No. 124847, ¶ 42) and that such acts were "in furtherance of, within [the] scope of employment" and that their acts presented a reasonable risk of injury that "defendant had a duty to prevent in exercise of due care or whom should have known tortfeasor was potentially dangerous/insubordinate" (id., ¶ 43; see ¶ 44). The cause of action asserts that claimant's damages arise from defendant's negligent supervision, respondeat superior and vicarious liability, but again, the cause of action is entirely devoid of factual allegations that describe the nature of the cause of action. To the extent that the ninth cause of action incorporates the allegations stated in the prior causes of action, that "bootstrap" approach is ineffective inasmuch as none of the first eight causes of action contain sufficient factual allegations of the misconduct of defendant's employees. Accordingly, the ninth cause of action does not satisfy the pleading requirements of Court of Claims § 11 (b), and it will be dismissed.
Two other causes of action - the third and sixth - will be dismissed because they are untimely. As pertinent here, Court of Claims Act §§ 10 (3), (3-b) and 11 (a) (i) require, inter alia, that a claim sounding in negligence or intentional tort be filed with the Clerk of the Court of Claims and served upon the Attorney General within 90 days after accrual of the claim. The filing and service requirements of the Court of Claims Act are jurisdictional in nature, and that the failure to timely serve the claim upon the Attorney General deprives the Court of subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 762-763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Locantore v State of New York, UID No. 2009-038-517 [Ct Cl, DeBow, J., Feb. 11, 2009]).
The third cause of action asserts that claimant's cell was improperly searched on May 15, 2014, and 90 days thereafter was August 13, 2014. Inasmuch as the claim was filed on August 15, 2014 - more than 90 days after accrual of the cause of action - it must be dismissed as...
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