New York State Court of Claims

New York State Court of Claims

SANDERS v. THE STATE OF NEW YORK, #2001-028-544, Claim No. 104073, Motion Nos. M-63523, CM-63573


Court denied Claimant's motion to compel disclosure as moot. Claimant advised he received the paperwork. Defendant's cross-motion to dismiss state constitutional torts is granted as Claimant's negligence action provides an adequate remedy.


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):
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:
BY: Belinda A. Wagner, Esq.
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 23, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's motion to compel disclosure and Defendant's cross-motion for dismissal of constitutional tort claims:

1) Notice of Motion and supporting affidavit of Vernard Sanders (Sanders Affidavit) filed May 21, 2001 with annexed Exhibit A;

2) Notice of cross-motion and affirmation in opposition of Assistant Attorney General Belinda A. Wagner ( Wagner affirmation) filed June 4, 2001 with annexed Exhibits A-C;

3) Opposition papers of Claimant: NONE.

4) Letter from Claimant dated July 9, 2001.

Filed Papers: Claim and Verified Answer

This claim arises from Claimant's removal from a temporary release program allegedly in contravention of the applicable regulations.[1] Following the filing of his Claim with the Court on April 2, 2001, Claimant served a Notice for Discovery and Production of Documents upon the Attorney General on April 23, 2001. The Discovery Notice, by its own terms, set May 16, 2001 as the date for production. In an apparent clairvoyant moment, on April 20, 2001(three days before he served the discovery notice) Claimant signed his affidavit in support of the instant motion and dated his Notice of Motion May 14, 2001. Coincidentally, Defendant's letter requesting additional time to obtain the requested materials was dated May, 14, 2001 (Wagner Affirmation, Exhibit C). Claimant, by his letter dated July 9, 2001 rendered his application moot when he stated "I have received the paperwork regarding the discovery motion" and is now ready for trial. Parenthetically, the Court would not on this record have granted Claimant's motion in light of the Attorney General's good faith efforts and the irregularities in the dates applied to Claimant's papers.

Defendant's cross-motion pursuant to CPLR 3211(a)(2), (7) and (8), which application is unopposed, seeks to dismiss the constitutional torts alleged by claimant for violations of "Due Process of Law 14th amendment Article 1 §6", "unreasonable searches and seizures 4th amendment Article 1, §12" and "cruel and unusual punishment 8th amendment Article 1, §5" (Claim, ¶2). These allegations each identify a provision of the United States Constitution and a State Constitution counterpart.

In light of the procedural posture of this motion, the Court will treat Claimant's averments as seeking redress under both the State and Federal Constitutions. In doing so, the Court will 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). "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" (Guggenheimer v Ginzburg, 43 NY2d 268, 275).

That being said, this Court lacks jurisdiction to hear and determine claims arising under the Federal Constitution which are redressable by an action pursuant to 42 USC §1983 (see, 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 in tort may sometimes arise under the New York State Constitution when: (1) the constitutional provision is self-executing; (2) the substantive right is firmly established; (3) the implied tort is necessary or appropriate to ensure the effectiveness of the provision; and (4) the claimant has no common law or statutory remedy available to him (see, Brown v State of New York, 89 NY2d 172; Remley v State of New York, 174 Misc 2d 523, 526). Following Brown, an action in tort under the State Constitution can be described as the road less traveled. Assuming arguendo, that the three provisions allegedly violated in this action satisfy the first three elements set forth above, Defendant correctly observes that the negligence action affords Claimant an adequate remedy to address the wrongs allegedly visited upon Claimant when he was removed from the work release program.[2] Claimant fails to allege a cause of action that is not otherwise cognizable under the common law and as such, there is no useful purpose in implying a damage remedy under the Constitution. Accordingly, no viable allegation under the State Constitution may survive (Brown v State of New York, supra; Remley v State of New York, supra).

For the reasons set forth above, the Claimant's motion is denied as moot and the Defendant's cross-motion to dismiss the claims alleging constitutional torts is granted.

July 23, 2001
Albany, New York

Judge of the Court of Claims

See, 7 NYCRR 1900, et. seq. - Temporary Release Program Rules and Regulations.

The Court is also at a loss to conceive on what basis his removal from the work release program could constitute cruel and unusual punishment (see, ZULU v. THE STATE OF NEW YORK, [Ct Cl, Patti, J.], Claim No. 96973 & 96974, Motion No. M-63183 & M-63184,UID #2001-013-006, [May 31,2001] for an insightful review of the eighth amendment and its New York counterpart.