New York State Court of Claims

New York State Court of Claims

JONES v. STATE OF NEW YORK, #2001-018-070, Claim No. 102461, Motion Nos. M-62300, M-62272, CM-62440


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-62300, M-62272
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:

Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIRE Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 2, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant brings a motion for a default judgment and/or to compel the defendant to accept

an amended claim. Defendant brings a motion to dismiss the amended claim and/or for

summary judgment. Claimant cross-moves for summary judgment. The Court has considered

the following documents in determining these motions:

Notice of Motion (M-62272).........................................................1

Affidavit of Charles Jones in support (M-62272)..........................2

Affirmation in Opposition of Joel L. Marmelstein,

Esquire, Assistant Attorney General (M-62272)................3

Notice of Motion to Dismiss the Claim

and/or for Summary Judgment (M-62300).........................4

Affirmation of Joel L. Marmelstein, Esquire

Assistant Attorney General in support with

all exhibits attached thereto (M-62300)..............................5

Notice of Cross Motion (CM-62440)..............................................6

Affidavit of Charles Jones in support with Memorandum

of Law attached thereto........................................................7

Filed Documents:

Verified Claim..................................................................................8

Verified Answer................................................................................9

Amended Claim...............................................................................10

Claimant's Motion for a Default Judgment and/or to Compel Defendant to Accept an

Amended Claim (Motion No. M-62272)

Claimant served a claim[1] in this matter upon the attorney general on May 12, 2000. Defendant received a copy of the claim by certified mail, return receipt requested on May 17, 2000. Defendant filed an answer to the claim on June 1, 2000, and served a copy upon the claimant. Claimant served an amended claim[2] upon the attorney general by mailing it via regular mail on July 5, 2000. The attorney general acknowledges receipt of the amended claim on July 11, 2000. On July 17, 2000, the assistant attorney general returned the amended claim to the claimant asserting that the amended claim did not comply with the provisions of CPLR 3025 and included two entirely new causes of action. Claimant stated that Defendant improperly rejected the amended claim and seeks a default judgment upon the amended claim on the ground that Defendant has failed to interpose an answer.

CPLR 3025(a) provides in pertinent part that:
A party may amend his pleadings once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it.

Subdivision (b) provides in pertinent part "a party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties..."

The Uniform Rules for the Court of Claims modifies the time frame set forth in the

CPLR and provides in pertinent part:

Pleadings may be amended in the manner provided by CPLR 3025, except that a party may amend a pleading once without leave of court within 40 days after its service, or at any time before the period for responding to it expires, or within 40 days after service of a pleading responding to it. (Uniform Rules for the Court of Claims [22 NYCRR §206.7(b)]).
In this case, Claimant served the amended claim within 40 days of service; as a result it was timely. Furthermore, since the amendment was as-of-course, it could include anything that could have been included in the original pleading, and even an additional separate and distinct cause of action. (Siegel, NY Prac. §236, at 377 [3rd ed]) Accordingly, Defendant returned the amended claim in error.

Since there is no dispute that Defendant received the amended claim and did not respond, Claimant has technically established his right to a default judgment; however, the Court will deny Claimant's motion on the basis that the Defendant has submitted documentation to show an excuse for the default and a meritorious defense. Since these are factors which ultimately warrant the vacatur of any default judgment, the Court declines to enter judgment in the first instance.

Accordingly, Claimant's motion for a default judgment is DENIED and Defendant is directed to file and serve an answer to the amended "claim" within 40 days of the date this order is filed with the Clerk of the Court.

Defendant's Motion to Dismiss the Claim and/or Grant Summary Judgment

(Motion No. M-62300)

Defendant brings this motion seeking an order dismissing the claim[3] or granting summary judgment on the basis that this Court does not have subject matter jurisdiction to decide the causes of action alleging constitutional torts based upon violations of Claimant's right to free speech and freedom from cruel and inhuman treatment arising from either the Federal or State constitutions. Defendant further argues that the claim asserts a refusal to provide a preferable proper dental treatment, not dental malpractice, and summary judgment should be granted because there are no factual issues and the claim lacks legal merit.

Claimant's first cause of action is for a constitutional tort based upon the Department of Correctional Services employees depriving him of his right to freedom of speech and expression. Apparently, Claimant, in or about January 2000, wrote letters to two justices of the Supreme Court of the State of New York in which he "express[ed] [his] opinion and criticism" (Amended Claim ¶2). On January 24, 2000, Claimant was issued a Tier II ticket for the letters and after allegedly exhausting administrative remedies Claimant was prohibited from writing any further letters to the two justices.

Claimant's second cause of action asserts a violation of Claimant's right from cruel and unusual punishment alleging that on two separate occasions Claimant fractured a tooth and the correctional facility dentist repaired the tooth by applying a resin bonding. Claimant feels that the proper course of treatment was to cap the teeth, and maintains that the policy preventing the dentist from capping his tooth and mandating the "cheaper repair treatment" constitutes cruel and unusual punishment for which he is entitled to damages. (Amended Claim ¶10).

The Defendant correctly argues that this Court lacks jurisdiction to impose damages for a violation of the Federal Constitution under the Federal Civil Rights Statute (42 USC §1983). The State is not a person within the meaning of 42 USC §1983 and thus such a claim is not actionable in this Court. (Ferrick v State of New York, 198 AD2d 822; Zagarella v State of New York, 149 AD2d 503; De LaRosa v State of New York, 173 Misc 2d 1007)

The Court of Appeals, however, determined that violations of the search and seizure and equal protection clauses of the New York State Constitution were actionable in this Court as constitutional torts. (Brown v State of New York , 89 NY2d 172) The Court noted that since the State had no enabling legislation similar to the Federal Civil Rights Statute (42 USC §1983), a damage remedy must be implied from the constitution directly. The Court utilized the following criteria to find that violations of the search and seizure and equal protection clauses were actionable: the particular constitutional provision must be self-executing, impose a clearly defined duty on the State officers and employees, declaratory and injunctive relief must be inadequate and a money damage remedy must be necessary to further the purpose of the constitutional provision, to assure its effectiveness, to deter governmental misconduct and to make the claimants whole. (Brown v State of New York , supra at 188-192) Judge Collins in De LaRosa v State of New York, supra, used the same analysis to hold that the clause in the New York State Constitution prohibiting cruel and unusual punishment was also actionable as a constitutional tort. However, where there is another remedy available to the claimant, the Courts have declined to entertain a constitutional tort cause of action; a constitutional tort remedy "should only be implied where it is necessary to ensure the effectiveness of the provision and appropriate in furtherance of its purpose." (Remley v State of New York 174 Misc 2d 523, 526; Mayo v State of New York, Ct Cl, filed October 29, 1999, J. Corbett, Claim No. 95215; Chmielewsky v State of New York, Ct Cl, filed November 17, 1998, J. King, Claim No. 91639) In this case, even assuming that the criteria set forth in Brown for a violation of the freedom of speech and cruel and unusual punishment provisions of the State Constitution could not be met, it is certainly not necessary to imply a constitutional tort remedy. Claimant could have brought an Article 78 proceeding to review whether the restriction on Claimant's letter writing was an abuse of discretion and to review the denial of Claimant's appeal for what Claimant deems was the appropriate treatment of his broken teeth. The Article 78 proceedings would have provided Claimant with redress for the same wrongs alleged in the constitutional tort causes of action.

Accordingly, Defendant's motion to dismiss is GRANTED dismissing Claimant's amended claim under either the Federal or State Constitutions for cruel and unusual treatment due to the application of resin bonding instead of capping his two broken teeth and for a violation of his right to freedom of speech. The balance of Claimant's amended claim remains.

Claimant's Cross-Motion for Summary Judgment, (Motion No. CM-62440)

Claimant brings a cross- motion for summary judgment on the constitutional torts. The constitutional tort claims relating to the restriction prohibiting Claimant from further corresponding with two Supreme Court justices, allegedly in violation of his freedom of speech, and the claim asserting cruel and unusual punishment for denying Claimant caps for his teeth, instead of the resin bonding have been DISMISSED above, making Claimant's motion moot on those causes of action.

Since Defendant has not yet responded to Claimant's amended claim, it is premature for the Court to consider Claimant's motion relating to his constitutional tort claim for failure to replace a dental bridge.

Accordingly, Claimant's cross-motion is DENIED.

March 2, 2001
Syracuse, New York

Judge of the Court of Claims

[1]Claimant actually labeled the document a complaint, but it is a claim for purposes of this Court and will be referred to as such.
[2]Claimant labeled this document an amended complaint, see note 2 above.
[3]The Court notes that this motion addresses the original "complaint" and not the amended "complaint". However, the allegations in the amended "complaint" are substantially the same as the original "complaint" for purposes of the motion to dismiss, and as such the Court will consider the motion to dismiss as one seeking dismissal of the constitutional tort allegations in the amended "complaint." Furthermore, in response to Claimant's argument that Defendant's motion is a nullity because no answer was served and therefore issue has not been joined, a motion to dismiss may be brought before a responsive pleading is served. (See, CPLR 3211(f))