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
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
, 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
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,
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
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,
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.