New York State Court of Claims

New York State Court of Claims

VELOZ v. THE STATE OF NEW YORK, #2003-030-525, Claim No. 107026, Motion No. M-66204


Inmate claim of intentional infliction of emotional distress is caused by alleged destruction of disbursement request form dismissed. Defendant's motion to dismiss for failure to state a cause of action upon which relief may be granted, granted. State cannot be held liable for intentional infliction of emotional harm; no elements of prima facie tort; no general negligence principles applicable

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:
Third-party defendant's attorney:

Signature date:
March 27, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on Defendant's motion for an order

dismissing Claim Number 107026 pursuant to Civil Practice Law and Rules §3211(a)(7) on the

ground that the claim fails to state a cause of action upon which relief may be granted:
1,2 Notice of Motion and Affirmation of J. Gardner Ryan, Assistant Attorney General dated November 26, 2002
3,4 Affirmation (sic) of Francisco Veloz dated December 2, 2002 and accompanying Exhibit
5 Filed papers: Claim
After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:
Claimant alleges in Claim Number 107026 that while he was incarcerated at Green Haven Correctional Facility (hereafter Green Haven) Defendant's agents, acting within the scope of their employment, intentionally destroyed or otherwise mishandled a completed disbursement request form. He states that on September 2, 2002 he had completed the required disbursement form for the issuance of a check from his inmate account in the amount of $9,200.00 in order to pay for his daughter's tuition and other expenses. Claimant alleges that the disbursement form was destroyed and the requested check was not issued. After he submitted a second written disbursement form on October 31, 2002, a check was issued on or about November 6, 2002. Claimant seeks damages for the emotional suffering his daughter experienced because she was unable to pay for tuition and books, as well as necessities of daily living, and his own emotional suffering.
In a motion to dismiss a claim for failure to state a cause of action the movant is held to have conceded the truth of every fact alleged by the Claimant for purposes of the motion. Civil Practice Law and Rules §3211(a)(7). Determination of the motion, generally, does not rest upon resolution of the ultimate facts, but rather on whether those facts asserted make out a claim. See, Stukuls v State of New York, 42 NY2d 272, 275 (1977); cf.: Rovello v Orofino Realty Co., Inc., 40 NY2d 633 (1976).
As noted by the Assistant Attorney General, the State cannot be held liable for the intentional infliction of emotional harm. The State is an entity, incapable of forming the requisite intent. Furthermore, "...public policy prohibits a claim for intentional infliction of emotional distress from being brought against the State....(citation omitted)," De Lesline v State of New York, 91 AD2d 785, 786 (3d Dept 1982); and the State is not subject to punitive damages. Sharapata v Town of Islip, 56 NY2d 332, 334 (1982); Wheeler v State of New York, 104 AD2d 496,498 (2d Dept 1984). Accordingly, the aspect of the claim asserting intentional infliction of emotional distress does not state a viable cause of action.
If the claim is read as an attempt to assert a cause of action for prima facie tort, it also will not lie. The "...elements of a cause of action for prima facie tort are (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful....(citations omitted)." Freihofer v Hearst Corp., 65 NY2d 135, 142-143 (1985). Importantly, "[a] critical element of the cause of action is that...[claimant] suffered specific and measurable loss,...[requiring] an allegation of special damages...(citations omitted). Moreover it has been observed that ‘[p]rima facie tort should not become a ‘catch-all' alternative for every cause of action which cannot stand on its own legs.'...(citations omitted). Where relief may be afforded under traditional tort concepts, prima facie tort may not be invoked as a basis to sustain a pleading which otherwise fails to state a cause of action in conventional tort....(citations omitted) [although] a party will not be foreclosed from pleading, as alternative relief, a cause of action for prima facie tort....(citation omitted)." Id.
Again, "public policy prohibits the maintenance of a suit against the State or, by extension, an official acting in his or her official capacity for prima facie tort (see, Van Buskirk v Bleiler, 46 AD2d 707, 707-708)[3d Dept 1974]." Cavanaugh v Doherty, 243 AD2d 92, 101 (3d Dept 1998). [1] Accordingly, if the claim herein is read as alleging prima facie tort, there is some question as to whether it could be maintained against the State at all.[2] In addition to this infirmity, Claimant has not alleged special damages as required and thus a cause of action for prima facie tort is not stated.
Finally, more general negligence principles will not apply here either. To establish a prima facie case of negligence the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of plaintiff's injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence.
The State has a duty to maintain inmate funds and account for the monies therein, [See, generally, §§116, 187 Correction Law], and is charged with disbursing monies - with or without the consent of the inmate - to dependent relatives upon proper certification by a welfare official. §189 Correction Law. The inmate may draw upon his inmate account "...only upon approval of the commissioner to aid dependent relatives of such prisoner, or for such other purposes as the commissioner may approve." [Id]. Clearly, funds are released as an exercise of discretion.
Even assuming that Defendant's agents breached any duty of care, no compensable injury is alleged, nor does any foreseeable injury flow from the duty breached. Claimant has asserted in his Claim that defendant's agents intentionally destroyed a disbursement request form, causing the check requested to be issued later than anticipated, and causing emotional harm to Claimant and his daughter. No real pecuniary loss is alleged. Indeed, the check was ultimately issued and presumably spent for its intended purpose.
Accordingly, Defendant's motion to dismiss is in all respects granted, and Claim Number 107026 is hereby dismissed in its entirety.

March 27, 2003
White Plains, New York

Judge of the Court of Claims

[1] The "at-will" employee in that case was found to have sufficiently stated a claim for prima facie tort - since no claim for "abusive discharge" lies in New York - against two of her supervisors, but the claim against the Secretary of State was included within public policy proscriptions against suit.
[2] "However, ‘the malicious instigation of official action does not give rise to prima facie tort liability' (Smith v Helbraun,...[38 Misc 2d 136,143] or intentional infliction of mental distress in that...malicious intent is ignored as a matter of public policy...(citation omitted)." Van Buskirk v Bleiler, 46 AD2d 707 (3d Dept 1974). Thus in an action where a civil service employee had been discharged without a hearing by a school board his lawsuit against the individual members of the Board was dismissed. But, c.f., Mahoney v State of New York, 236 AD2d 37,41 (3d Dept 1997), wherein the Third Department affirmed the Court of Claims determination concerning prima facie tort, saying, "...the record as a whole, viewed in the light most favorable to claimants, could arguably support a finding that some of the conduct and statements of the State's agents were motivated solely by ‘disinterested malevolence' toward claimants, so as to permit recovery for prima facie tort...(citation omitted)."