New York State Court of Claims

New York State Court of Claims

VAN STEENBURG v. THE STATE OF NEW YORK, #2001-015-146, Claim No. 103515, Motion No. M-62966


Synopsis


Court granted State's CPLR 3211 (a) (7) motion to dismiss claim for failure to state a cause of action relying upon its prior decision in Warburton v State of New York, 173 Misc 2d 879, Court determined that no private cause of action for money damages exists for a violation of the Freedom of Information Law (FOIL). Court also found claimant's alleged cause of action for a constitutional tort based upon State Police destruction of six year old police logs and blotters to be without merit.

Case Information

UID:
2001-015-146
Claimant(s):
EDWARD VAN STEENBURG
Claimant short name:
VAN STEENBURG
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103515
Motion number(s):
M-62966
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Edward Van Steenburg, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 24, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's pre-answer motion pursuant to CPLR 3211 (a) (7) seeking dismissal of the claim on the grounds that it fails to state a cause of action is granted. The claimant's notice of motion dated January 23, 2001 and supporting affidavit seek an order dismissing the defendant's motion and ordering service of an answer to the claim and will be treated by the Court as opposition to the defendant's motion. The claim seeks to recover money damages for the alleged negligent destruction of New York State Police log books/blotter entries for Troop "F" for October 3 and 4, 1992. Claimant alleges that the blotter entries and/or log book entries were destroyed, allegedly pursuant to State Police rules and regulations, while claimant had an outstanding FOIL request pending for the material. His request was dated July 16, 1998. Claimant alleges that the information contained in the log books/blotter entries was exculpatory evidence tending to disprove testimony offered against him by his wife at a criminal trial held in Sullivan County Court. Claimant was convicted on all counts of a Sullivan County Grand Jury Indictment (232-92) and was sentenced to fifteen to thirty years in prison. Claimant further claims that the denial of access to the police log books/blotter entries deprived him of the opportunity to obtain a vacatur of the judgment of conviction and a new trial. He alleges that the denial of access to the requested information denied him due process and equal protection of the law to FOIL [sic]. He seeks total compensation in the amount of $11,500,000.

Defendant moved for an order dismissing the claim on the grounds that it fails to state a cause of action in light of this Court's decision in Warburton v State of New York, 173 Misc 2d 879, where the Court held that no private cause of action for money damages is cognizable for a violation of the Freedom of Information Law[1] (Public Officers Law, art 6). Claimant opposed the motion alleging that his claim sets forth multiple causes of action for constitutional tort arising out of separate violations of the due process and equal protection clauses of the constitution. The claim itself does not specify which constitution, Federal or State, claimant alleges was violated although he asserts at paragraph 12 of his affidavit that "there is asserted a cause of action based upon a violation of the State Constitution ..." The same position is repeated in claimant's supplemental affidavit and in his "affidavit in rebuttal." His allegations regarding the constitutional tort will be considered as having arisen solely under the New York State Constitution.

It is well established that on a motion pursuant to CPLR 3211 (a)(7) the Court's role is to examine the pleading to determine whether the claimant has a cause of action rather than whether a cause of action has been stated (Quail Ridge Assocs. V Chemical Bank , 162 AD2d 917, 918; lv dismissed 76 NY2d 936). In doing so the Court should construe the pleading liberally, accept the facts alleged as true (Carp v Marcus, 112 AD2d 546) and accord the claimant the benefit of all favorable inferences which may be drawn from the pleading (see, Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318).

As the Court of Appeals in Guggenheimer v Ginzburg, 43 NY2d 268, 275 observed "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail (see, Foley v D'Agostino, 21 AD2d 60, 64-65; Siegel Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3211:24; p. 31; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3211:36)."

Even applying these liberal standards to the claim, the Court is constrained to conclude that the claim should be dismissed in light of its decision in Warburton. Distilled to its essence this claim seeks to recover money damages for the alleged negligent destruction of police logs/blotters six years after their creation by the State police in the ordinary course of police business. This Court sees no significant difference between the instant claimant's request for money damages arising from the State's failure to preserve FOIL requested documents and the request made in Warburton, supra. In that decision the Court offered the following legal analysis with regard to whether there exists a cognizable private cause of action for money damages for a violation of FOIL:
Subdivision (4) of Section 89 of the Public Officers Law sets forth the means by which the Legislature intended to enforce FOIL. The subdivision provides that in the event that access to a record is denied the affected person may bring an article 78 proceeding. The subdivision further provides that if the petitioner prevails, upon an appropriate record, he or she can be awarded reasonable attorney's fees and litigation costs. Finally, during 1989 the Legislature amended Public Officers Law section 89 by adding subdivision 8 which provides that any person "who with the intent to prevent the public inspection of a record pursuant to this article, wilfully conceals or destroys any such record shall be guilty of a violation" (L1989, ch 705). Article 6 of the Public Officers Law does not expressly confer on citizens the right to bring an action for money damages in the event of a violation. That being so, the question becomes whether such a right is implied in the legislation. The case of Carrier v Salvation Army, 88 NY2d 298, 302, quotes the following test for whether a private cause of action should be found:

"(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme."

Here, claimant is clearly within the class of people for whose particular benefit FOIL was created. Moreover, an argument could be made that recognizing a private right of action would promote the legislative purpose of making government records available to the public. However, claimant cannot overcome the third factor, which is the "most critical" (Brian Hoxie's Painting Co. v Cato-Meridian Cent. School Dist, 76 NY2d 207, 212), in that permitting a private cause of action for money damages for a violation of FOIL would be inconsistent with the carefully crafted remedies set forth therein. While aware that under certain circumstances an inmate has been given the right to sue for money damages in this Court due to an unauthorized access to and disclosure of his health information (Matter of V. v State of New York, 150 Misc 2d 156), it is settled law that a private cause of action should not be implied from a statute if such a remedy would be incompatible with the enforcement mechanism chosen by the Legislature, for "the Legislature has both the right and the authority to select the methods to be used in effectuating its goals" (Sheehy v Big Flats Community Day, 73 NY2d 629, 634). Here, the Legislature has given a civil remedy by way of an article 78 proceeding with counsel fees and court costs available, as well as a criminal sanction. To go beyond those remedies to create a private cause of action for money damages for a violation of FOIL would be improper judicial usurpation of the legislative function, a step the Court declines to take.
The Court holds as it did in Warburton that no valid cause of action has been stated under FOIL.

Claimant argues, however, that his claim should survive the motion because he has stated a constitutional tort claim under the New York State Constitution's due process and equal protection clauses as authorized by the Court of Appeals in Brown v State of New York, 89 NY 2d 172. This Court disagrees.

In order to state a constitutional tort claim one must do more than give passing reference to constitutional provisions such as due process and equal protection. Nowhere in the claim before the Court does the claimant allege any facts which tend to support his blanket allegation that he was denied due process by the State's alleged negligent destruction of police documents.

New York State Constitution art 1 § 6 in pertinent part states: "No person shall be deprived of life, liberty or property without due process of law." Claimant is not alleging that his life is imperiled and his liberty has been affected by his own criminal activity for which he stood trial and was convicted. It is not known whether his conviction was appealed but if so it was not successful. Moreover, the State's action in destroying its own six year old records did not deprive the claimant of his property. He had no proprietary interest in the destroyed documents, merely a legislatively created right under FOIL to obtain a copy of them while they were in existence (see, N.Y. State Comm. Open Govt. AO 10727, attached).

Since the actions of the State cannot be said to have deprived the claimant of life, liberty or property his due process violation argument fails.

Equal protection is guaranteed under New York State's Constitution to its residents in article 1, § 11 which states:
§ 11. [Equal protection of laws; discrimination in civil rights prohibited]

No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state.
In Brown v State of New York, supra at 190, the Court of Appeals speaking of article 1, § 11 said:
The provisions clearly define duties and impose them on government officers and employees. Section 11 is divided into two parts[2]. The first sentence directs that '[n]o person shall be denied the equal protection of the laws of this state or any subdivision thereof.' The provision was intended to afford coverage as broad as that provided by the Fourteenth Amendment to the United States Constitution (see, Dorsey v Stuyvesant Town Corp., 299 NY512, 530; 2 Rev Record of NY State Constitutional Convention, 1938, at 1065). The section imposes a clear duty on the State and its subdivisions to ensure that all persons in the same circumstances receive the same treatment (see, Davis v Passman, supra [implying a Federal cause of action based on the Fifth Amendment for denial of equal protection]).

The remainder of section 11 prohibits discrimination. It is implicit in the language of the provision, and clear from a reading of the constitutional debates, that this part of the section was not intended to create a duty without enabling legislation but only to state a general principle recognizing other provisions in the Constitution, the existing Civil Rights Law or statutes to be later enacted (see, Dorsey v Stuyvesant Town Corp., supra at 531; 2 Rev Record of NY Constitutional Convention, 1938, at 1069, 1144; id., vol 4, at 2626-2627). The Legislature subsequently implemented those guarantees by provisions of various statutes which regulate the conduct of both State officers and private individuals (see, e.g., Executive Law § 290 et seq., Human Rights Law]; Civil Rights Law § 40 et seq.; Labor Law § 220-e).
Unlike the claimants in Brown, the instant claimant has not alleged that he has been treated differently from other persons in the same circumstances. Nor does he allege in his claim that the State discriminated against him on the basis of race, color, creed or religion by destroying the subject police logs/blotters.

The instant claim does not set forth facts which state a cause of action for a constitutional tort under either the due process or equal protection clauses of the New York State Constitution.

Accordingly, the defendant's motion is granted and the instant claim is dismissed.


April 24, 2001
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated January 12, 2001;
  2. Affirmation of Kathleen M. Resnick dated January 12, 2001;
  3. "Notice of motion" [sic] treated as opposition to motion dated January 23 2001;
  4. Affidavit of Edward Van Steenburg sworn to January 23, 2001;
  5. Reply affirmation of Kathleen M. Resnick dated February 20, 2001;
  6. Supplemental affidavit of Edward Van Steenburg sworn to February 15, 2001.

[1]Hereinafter FOIL.
[2]Footnote omitted since text of § 11 was set forth above.