Livingston v. State, 127058.

• Decision Date: 31 March 2016
• Docket Number: No. 127058.,127058.
• Parties: Detroy LIVINGSTON, Claimant, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

57 N.Y.S.3d 675 (Table)

Detroy LIVINGSTON, Claimant,
v.
The STATE of New York, Defendant.

No. 127058.

Court of Claims of New York.

March 31, 2016.

Detroy Livingston, pro se.

Hon. Eric T. Schneiderman, New York State Attorney General by Ray A. Kyles, Esq. Assistant Attorney General, for defendant.

RENÉE FORGENSI MINARIK, J.

The following papers were read on motion by Defendant for dismissal of the claim:

1.Defendant's Notice of Motion, filed November 30, 2015;

2.Affirmation of Ray A. Kyles, Esq., dated November 27, 2015, with exhibits;

3.Claimant's Affidavit in Opposition, sworn to December 16, 2015;

4.Filed Documents: Claim.

With this motion, filed in lieu of an answer, Defendant requests that the Court dismiss Claimant's action for failing to set forth a viable cause of action over which this Court has jurisdiction.

In his claim, filed on November 16, 2015, Mr. Livingston alleges that on August 16 and 17, 2015, he was denied his right to exercise his religion. He also alleges that when he filed a grievance about these violations, he was subjected to harassment, retaliation and illegal confinement for 21 days. Mr. Livingston seeks $20,100.00 in damages.

As Defendant correctly points out, although freedom of religious expression is guaranteed by both the United States Constitution (1st Amendment) and the New York State Constitution (Article 1, § 3 ), alleged violations of those rights will not generally support a cause of action for money damages in the Court of Claims. First, a cause of action under the Federal Constitution is not cognizable in this Court (see Ferrer v. State of New York, 172 Misc.2d 1, 5 [Ct Cl 1996] ; Gill v. State of New York, UID No.2001–029–042 [Ct Cl, Mignano, J., Jan. 10, 2001] ).

Similarly, although the Court of Appeals recognized a cause of action for a violation of the New York State Constitution in Brown v. State of New York (89 N.Y.2d 172 [1996] ), courts have consistently determined that a constitutional tort remedy will not be implied when adequate alternative remedies exist ( Augat v. State of New York, 244 A.D.2d 835, 837 [3d Dept 1997] ; lv denied ...