New York State Court of Claims

New York State Court of Claims

MOATES v. STATE OF NEW YORK, #2000-018-044, Claim No. 99875, Motion Nos. M-61714, M-61565


Synopsis


Defendant successful in motion for lack of subject matter and/or personal jurisdiction. Claimant's motion requesting dismissal of defendant's affirmatives defenses was moot.

Case Information

UID:
2000-018-044
Claimant(s):
ROBERT MOATES Claimant brought the action against K. Tupper, Officer; C. Ramsdell, Officer; Sgt. Weir, Sgt. Wood, Sgt. Baker, D. Dietsuhweiler, Officer; B. Dulmage, Officer; S. Buschie, Officer; Montroy, Officer; Sgt. Dwguette, Sgt. Peacock, individually as correction officers at Riverview Correctional Facility. This Court only has jurisdiction over the State of New York. Since claimant properly served the attorney general pursuant to Court of Claims Act §11a with a copy of the claim, there is no indication the individual officers were ever served with the claim, and there is no prejudice to defendant. The Court will sua sponte amend the caption of the claim to reflect the State of New York as the only defendant. (See CPLR 2001 and 1003)
Claimant short name:
MOATES
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
Claimant brought the action against K. Tupper, Officer; C. Ramsdell, Officer; Sgt. Weir, Sgt. Wood, Sgt. Baker, D. Dietsuhweiler, Officer; B. Dulmage, Officer; S. Buschie, Officer; Montroy, Officer; Sgt. Dwguette, Sgt. Peacock, individually as correction officers at Riverview Correctional Facility. This Court only has jurisdiction over the State of New York. Since claimant properly served the attorney general pursuant to Court of Claims Act §11a with a copy of the claim, there is no indication the individual officers were ever served with the claim, and there is no prejudice to defendant. The Court will sua sponte amend the caption of the claim to reflect the State of New York as the only defendant. (See CPLR 2001 and 1003)
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99875
Motion number(s):
M-61714, M-61565
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
ROBERT MOATESPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIRE
Assistant Attorney General
G. LAWRENCE DILLON, ESQUIRE Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 25, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings a motion seeking an order dismissing the claim for lack of subject


matter and/or personal jurisdiction. Claimant brings a motion for an order dismissing


defendant's affirmative defenses. The Court has considered the following documents in


determining the motions:

Motion Number M-61565


Notice of Motion to Dismiss Claim...................................................1


Affirmation of G. Lawrence Dillon, Assistant Attorney General, in

Support with all exhibits attached thereto..............................2


"Verified Reply" of Robert Moates....................................................3



Motion Number M-61714


"Notice of Motion to Dismiss Defense"............................................4


Affidavit of Robert Moates in Support (5 pages) with all exhibits

attached thereto.....................................................................5


Affidavit of Robert Moates in Support ((2 pages).............................6


Affirmation of Joel L. Marmelstein, Assistant Attorney General,

in Opposition..........................................................................7


The motion to dismiss the claim will be addressed first. Defendant by its motion asserts that the claim seeks damages for a violation of claimant's civil rights as well as a loss of personal property. Defendant's position is that this Court does not have jurisdiction to hear a claim based upon a violation of the Civil Rights statute 42 U.S.C. §1983, and a constitutional tort claim based upon the New York State constitution is only recognized where there is no existing common law remedy. Since claimant, defendant argues, has a bailment claim no constitutional tort remedy is available. Defendant next asserts that Claimant's bailment claim is untimely since the claim was filed more than 90 days after the accrual date of November 15, 1998, and the defense was adequately preserved by raising the issue with particularity in the Answer.

Claimant response to the motion does not add any new facts or information; however, it does set forth portions of case law and various treatises and cites a number of cases. The gist of the response seems to be that the claim should be liberally construed to find that it alleges a cognizable cause of action, and the claim provides sufficient facts to give the State of New York notice of the cause of action. As a result, claimant maintains the claim should not be dismissed.

The claim, alleges in part, that "on JUAURAY [sic] 13, 1999, In [sic] retaliation for earlier lawsuits filed by ROBERT MOATES" against various named correction officers, "in 1999, and The [sic] complaint asserted that this RETALIATORY [sic], Contains [sic] stamp collection. (Photo ALBUM). Violated ROBERT MOATES due process and equal protection rights, and it Sought Damages [sic] and injunctive relief under claimant, Retaliatory [sic]and harassment Contains Stamp Collection (PHOTO ALBUM) [sic]. Record supported finding in civil rights Suit [sic] that write [sic] and other actions taken against ROBERT MOATES were Retaliation For [sic] his having taken legal action against Riverview Corr, [sic] Facility while INCARCERALED [sic] And [sic] for incident [sic] in which prison officers, Realiatory [sic] actions." (Claim ¶2) The claim continues on in the same fashion and ultimately seeks $4,000,000 in damages.

On page two of the claim, claimant complains that the correctional facility did not follow "all procedures [sic] in packing Moates property on 11/15/98. I was complaint [sic] my property was missing , on 11/16/98." Claimant seeks damages for the lost property in the amount of $2,000,000. The claim continues and has attached an "Inmate Claim Form" dated 11/25/98 which itemizes missing property totaling $391.89. Also attached are two cell search notices dated 1/13/99 and 1/18/99. The one dated 1/13/99 indicates that contraband was confiscated consisting of a photo album containing a stamp collection.

The first portion of claimant's claim seems to allege a violation of claimant's due process and equal protection rights based upon the correction officials search of claimant's cell and confiscation of claimant's stamp collection, which claimant alleges was in retaliation for other claims he filed against the officers. The specific details of the claim are lacking, and claimant did not expound upon this portion of his claim in his Verified Bill of Particulars, advancing only his claim for lost property arising from November 1998;[1] nor does claimant provide any further details in his "Verified Reply."

To the extent that claimant is seeking redress for a deprivation of his federal constitutional rights under the civil rights statute 42 U.S.C. §1983, defendant is correct in that such a remedy is not available against the State in the Court of Claims. (Zagarella v State of New York, 149 AD2d 503; Ferrick v State of New York, 198 AD2d 822; Davis v State of New York, 124 AD2d 420)

A cause of action for a violation of certain provisions of the State constitution has been recognized as actionable in this Court. In Brown v State of New York, 89 NY2d 172, the Court of Appeals held that a violation of the equal protection and search and seizure provisions of the State Constitution can give rise to an action for money damages in the Court of Claims. Although not addressed in Brown, in Remley v State of New York, 174 Misc 2d 523, 526, Judge McNamara found that the due process provision of the New York State Constitution met the criteria set forth in Brown for determining whether a particular constitutional provision was actionable in this Court as a constitutional tort. Yet the defendant maintains, even if the due process as well as the equal protection provisions of the State constitution are viable as constitutional torts, the claimant has a cause of action for a common law tort, therefore there is no need to look to the constitution to fashion a remedy. Certainly the Courts should not imply relief under the constitution if there exists an adequate alternative remedy. (Remley v State of New York, supra at 527; Augat v State of New York, 244 AD2d 835, 837; Chmielewsky v State of New York, Ct., Cl., J. King, filed November 17, 1998, Cl. No. 91639)The key, however, is whether the available common law relief is adequate to "insure the effectiveness of the constitutional provision," (Remley v State of New York, supra at 527).

In this case, the crux of claimant's allegations regarding January 13, 1999, are that in retaliation for other legal proceedings he commenced against certain officers, the State through these officers targeted him for a cell search, confiscated his stamp collection, prevented him from raising certain issues during the hearing and subjected him to disciplinary action. A bailment cause of action cannot adequately address such allegations. Notwithstanding, claimant could have brought an Article 78 proceeding to review whether the search and the hearing were properly conducted in accordance with the rules and regulations governing the facility, and whether the disciplinary action taken, including the confiscation of claimant's stamp collection, was appropriate. (See, Matter of James v Couture, 266 AD2d 604; Matter of Sparks v Coombe, 243 AD2d 767; Matter of Wanton v Coombe, 234 AD2d 824) Under these circumstances, an Article 78 proceeding would have provided the claimant with an adequate alternative remedy, thereby eliminating the need to employ a constitutional tort cause of action. (See, Cook v State of New York, Ct Cl, J. Nadel, filed January 20, 2000, claim no. 96062).

Defendant also argues that claimant's bailment cause of action is untimely pursuant to Court of Claims Act §10(3). It is defendant's position that the bailment cause of action accrued on November 15, 1998, the date claimant set forth as the date of the loss in his Verified Bill of Particulars. Claimant did not serve the Attorney General with the claim until February 25, 1999, more than 90 days after the date of accrual.

A bailment is created when the property of the bailor is taken into the possession of the bailee. "The determination as to whether the relationship is one of bailor and bailee turns on whether there is a relinquishment of exclusive possession, control and dominion over the property,...and ‘depends on the place, the conditions and the nature of the transaction'..." (Hutton v Public Stor. Mgt., 177 Misc 2d 540, 541) The New York State Code of Rules and Regulations [7 NYCRR §302.2(g)(1) and (2)] provides that upon admission to the Special Housing Unit, all inmate property, except for the items specifically allowed, will be confiscated and "securely stored ....until the inmate is released or transferred from the SHU." (New York State Code of Rules and Regulations [7 NYCRR §302.2(g)(1)].) It appears that at the time that claimant's property was taken into the possession of the State he was being transferred to the Special Housing Unit. Since a bailment cause of action only accrues "when the bailor demands the property and the bailee refuses to deliver it," claimant's cause of action could not have accrued until he was released from the Special Housing Unit. (Heede Hoist and Machine Co., Inc. v Bayview Towers Apartments, Inc., 74 AD2d 598, Brodie v State of New York, Ct. Cl., J. Patti, filed June 9, 1997, Claim No. 92287, Motion No. M-55007)

It does appear from the documents attached to the claim, that on November 25, 1998 he filed an Inmate Clam Form identifying the alleged items that were lost. Although the Court cannot determine whether claimant was out of the Special Housing Unit by that date, claimant was undoubtedly demanding compensation for the items he alleged were missing by that date, and he had obviously inspected his property. As a result, the Court will use November 25, 1998 as the date of accrual for purposes of this motion. Regrettably, this date does not save claimant's claim. Pursuant to Court of Claims Act §10(3-a), a notice of intention or the claim should have been served or filed and served on or before February 23, 1999. The claim was served upon the Attorney General on February 25, 1999.[2] Although claimant narrowly missed the deadline, the requirements of §10 and 11 of the Court of Claims Act are jurisdictional prerequisites to maintaining an action in the Court of Claims and the Court is without the authority to ignore a properly preserved defect. (Byrne v State of New York, 104 AD2d 782; Phillips v State of New York, 237 AD2d 590; Cannon v State of New York, 163 Misc 2d 623.) The Court finds that defendant's Second Affirmative Defense adequately complied with the requirements of Court of Claims Act §11(c). As a result, the claim must be dismissed.
Motion Number M-61714

Claimant brings a motion to dismiss defendant's affirmative defenses on the ground that the defenses have no merit, and he submits a supporting affidavit requesting such relief. However, he attaches a second affidavit in support which requests permission to serve an amended claim. Whether claimant seeks dismissal of defendant's defenses or permission to amend the claim, given the Court's determination of defendant's motion, dismissing the claim, the Claimant's motion is denied.


September 25, 2000
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims




[1]
Defendant's position is that since claimant did not provide any details of the alleged civil rights violations in his verified bill of particulars, his claim is only in bailment for loss of personal property. However, the claim clearly seeks relief for a violation of his equal protection and due process rights and given the fact claimant is pro se, the Court will address the constitutional claim as well.
[2]
Claimant, in his affidavit in support of his "Motion to Dismiss Defense" (M-61714) filed with the Clerk of the Court on May 12, 2000, almost a month after the Attorney General's Motion to dismiss the Claim was filed, asserts that he served the Attorney General with a notice of intention to file a claim and the claim on February 13, 1999 (interestingly, the same date the Attorney General asserted that the claim needed to be filed and served to be timely), however no proof was provided of such service. Instead, the photocopy of the envelope in which the Attorney General received the claim is post-marked February 22,1999, supporting defendant's position that the claim was not served until February 25, 1999.