New York State Court of Claims

New York State Court of Claims

FORSHEY v. THE STATE OF NEW YORK, #2003-031-083, Claim No. 105817, Motion Nos. M-66810, M-66880, CM-66887


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-66810, M-66880, CM-66887
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: TIMOTHY P. MULVEY, ESQ.Assistatnt Attorney General
Third-party defendant's attorney:

Signature date:
November 10, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The Court has before it three separate motions relating to claim number 105817. In the interest of judicial economy, all motions are considered together in this decision. Claimant brings two separate motions, one to compel discovery from Defendant and one in which he requests a preliminary conference for the purposes of discussing settlement of this action.

Defendant has filed a cross-motion in which it seeks the dismissal of several causes of action asserted in the claim. In his underlying claim, filed on March 28, 2002, Mr. Forshey alleges that, between August 22, 2001 and November 14, 2001, he was the subject of harassment by correction officers at both Five Points Correctional Facility and Wende Correctional Facility. He alleges that he was given bogus misbehavior reports, illegally confined, that his personal property was lost or destroyed, and that his civil rights were violated.

As the determination of Defendant's motion will necessarily affect the scope of discovery in this matter, I will address Defendant's cross-motion first. Of course, in a motion to dismiss a claim, the pertinent provisions of § 3211(a) of the Civil Practice Law and Rules provide that "A party may move for judgment dismissing one or more causes of action asserted against him on the ground that . . . 7. the pleading fails to state a cause of action . . ." In such a motion, the movant, here Defendant, is held to have conceded the truth of every fact alleged by the Claimant for purposes of the motion. Determination of the motion, generally, does not rest upon resolution of the ultimate facts, but rather on whether the facts asserted adequately set forth a viable cause of action (see Stukuls v State of New York, 42 NY2d 272, 275; cf. Rovello v Orofino Realty Co., 40 NY2d 633).

Defendant concedes that Claimant has set forth a valid cause of action for lost personal property. Defendant argues that Claimant's other causes of action, for civil rights violations, wrongful confinement and emotional distress, should be dismissed. I agree.

With regard to the alleged constitutional violations, Claimant alleges that he was denied access to a law library, that Defendant denied him a mattress for 2 days and a pillow for 13 days, and that he was the victim of harassment by various correction officers at each of the above identified facilities.

To the extent that the claim sounds in alleged violations of the United States Constitution or federal civil rights, they are properly raised in federal court, not in the Court of Claims (Zagarella v State of New York, 149 AD2d 503; Ferrick v State of New York, 198 AD2d 822).

I note that Claimant has also stated, albeit only in general terms, that his New York State Constitutional rights were violated. As Judge Philip J. Patti stated in Zulu v State of New York (Ct Cl, May 21, 2001 [Claim Nos. 96973 and 96974, Motion Nos. M-63183 and M-63184], UID #2001-013-006),
"A cause of action in tort may sometimes arise under the New York State Constitution . . . But caution should be exercised in recognizing a tort claim based upon the violation of constitutional "rights." In comparison to the Federal Constitution, the State Constitution "touch[es] on subjects and concerns with less attention to any hierarchy of values, and . . . concededly contains references to matters which could as well have been left to statutory articulation" (Board of Education, Levittown Union Free School District v Nyquist, 57 NY2d 27, 43 n.5, appeal dismissed 459 US 1138).
I find that Claimant was not without his mattress or pillow for any length of time that would rise to the level of a constitutional violation and that any inconvenience to Claimant during the period in question was de minimis. I also note that, generally, living conditions and the quality of life within prison facilities are issues for which this court has no jurisdiction (see e.g. Ford v State of New York, Ct Cl, August 30, 2000 [Claim No. 96731, Motion No. M-62132], Corbett, J., UID # 2000-005-540). Additionally, under the circumstances as set forth in the claim, an Article 78 proceeding would have provided Claimant with an adequate alternative remedy, thereby eliminating the need to employ a constitutional tort cause of action (see Cook v State of New York, Ct Cl, January 20, 2000 [Claim No. 96062], Nadel, J.).

With regard to Claimant's cause of action for illegal confinement, Claimant alleges that the Inmate Misbehavior Reports underlying his disciplinary hearings were written without proper basis. Though Claimant disputes the validity of the charges against him which were determined at his disciplinary hearings, he cites no shortcoming in the hearing process itself upon which an action for illegal confinement can be based. Claimant has not alleged that Defendant violated any of its own rules and regulations in conducting the hearings, or otherwise acted outside the sphere of privileged actions with regard to the hearing process (Arteaga v State of New York, 72 NY2d 212; Davis v State of New York, 262 AD2d 887, lv denied 93 NY2d 819). Accordingly, their determinations are entitled to immunity.

Moreover, to the extent that Claimant's argument that the underlying Inmate Misbehavior Reports were issued without basis has merit, his remedy was with the Supreme Court in an Article 78 proceeding (Moreno v State of New York, Ct Cl, April 5, 2001 [Claim No. 100335], Bell, J., UID # 2001-007-551).

To the extent that Claimant has alleged a cause of action for intentional infliction of emotional distress, public policy prohibits an action against the State for intentional infliction of emotional distress (Brown v State of New York, 125 AD2d 750, lv dismissed 70 NY2d 747; Wheeler v State of New York, 104 AD2d 496; DeLesline v State of New York, 91 AD2d 785, lv denied 58 NY2d 610). This cause of action is without merit.

For the reasons set forth above, I find that the only viable cause of action set forth in the claim in this matter is the cause of action relating to Claimant's lost property. I note that Defendant has produced during discovery all documents requested by Claimant relating to this cause of action. For this reason, Claimant's motion to compel disclosure from Defendant is denied.

Claimant's motion for a preliminary conference to discuss settlement of his claim is likewise denied. Claimant is free to contact Defendant on his own to initiate settlement negotiations. It is unnecessary and arguably unwise for the Court, the ultimate trier of fact, to be involved in such matters.

Accordingly, it is hereby:

ORDERED, that Defendant's motion for dismissal of certain causes of action in this claim is granted. All causes of action alleged in the claim, except those alleging lost property are dismissed. Claimant's motion to compel discovery and his motion for a preliminary conference are denied.

November 10, 2003
Rochester, New York
Judge of the Court of Claims