Perkins v. McGrain

• Citation: 112 A.D.3d 1018,975 N.Y.S.2d 924,2013 N.Y. Slip Op. 08167
• Parties: Michael PERKINS, Appellant, v. Mark D. McGRAIN et al., Respondents.
• Decision Date: 05 December 2013
• Court: New York Supreme Court Appellate Division

112 A.D.3d 1018
975 N.Y.S.2d 924
2013 N.Y. Slip Op. 08167

Michael PERKINS, Appellant,
v.
Mark D. McGRAIN et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 5, 2013.

Michael Perkins, Malone, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous of counsel), for respondents.

Before: Rose, J.P., Spain, Garry and Egan Jr., JJ.

GARRY, J.

Appeal from an order of the Supreme Court (Reynolds Fitzgerald, J.), entered December 26, 2012 in Chemung County, which granted defendants' motion to dismiss the complaint.

[975 N.Y.S.2d 925]

In December 2011, plaintiff, an inmate in the custody of the Department of Corrections and Community Supervision, commenced this action pursuant to 42 USC § 1983 against defendants, all Department employees, claiming that they negligently and/or intentionally deprived him of his personal property.¹ Thereafter, defendants, among other things, moved to dismiss the complaint for failure to state a valid claim for relief under 42 USC § 1983. Supreme Court granted that motion and dismissed the complaint without prejudice, in the event that plaintiff alternatively chose to file an action in the Court of Claims. Plaintiff appeals, and we affirm.

Contrary to plaintiff's argument, Supreme Court did not dismiss the action for lack of jurisdiction based upon Correction Law § 24, in contravention of Haywood v. Drown 556 U.S. 729, 736, 129 S.Ct. 2108, 173 L.Ed.2d 920 [2009] [ruling that Correction Law § 24 violates the Supremacy Clause as applied to 42 USC § 1983 claims] ( see Carrington v. Moore, 104 A.D.3d 1091, 961 N.Y.S.2d 813 [2013] ). We agree with Supreme Court that the alleged acts by defendants described by plaintiff in the complaint can only be properly characterized as “random and unauthorized,” rather than as “a product of governmental policy” ( Corvetti v. Town of Lake Pleasant, 227 A.D.2d 821, 824, 642 N.Y.S.2d 420 [1996] ). It is well settled that claims for property loss of this nature “will not support a due process claim redressable under [section] 1983 if ‘adequate state post-deprivation remedies are available,’ ” such as a Court of Claims action (Davis v. New York, 311 Fed.Appx. 397, 400 [2d Cir.2009], quoting Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 [1984]; see Bellezza v. Holland, 730 F.Supp.2d 311, 316 [S.D.N.Y. 2010] ). Thus, we find no basis to disturb Supreme Court's dismissal of the complaint.

ORDERED that the order is...