7. Filed Documents: Claim. Defendant brings this motion for dismissal
of the claim. In the claim, which was filed on July 11, 2003, Mr. Jacobs
alleges that "the state of new york and their agents, staff's medical
personnels, commissioner's hearing officers, deputy superintendents,
superintendent, captains, leiutentants, law library officers, correctional
officers, S.H.U. housing unit officers, Director's and/or employees" (sic) were
all involved in a conspiracy to retaliate against Claimant for "exercising his
rights to free speech and Freedom of expression, and his right to petition the
courts . . . " The claim itself, which is 76 typewritten pages, and contains
132 numbered paragraphs, is prolix, rambling and very difficult to
A review of the meandering claim is an extremely arduous and confusing task.
Though one can infer, in certain portions, what is arguably an actual cause of
action, the claim, as a whole, is so unclear that it does not comply with §
11 of the Court of Claims Act, which requires that a "claim shall state the time
when and place where such claim arose, the nature of same, and the items of
damage or injuries claimed to have been sustained and the total sum claimed."
The purpose of § 11 "is to give the State prompt notice of an occurrence
and an opportunity to investigate the facts . . ." (Cannon v State of New
York, 163 Misc 2d 623, 626). I find that, for the most part, the claim in
this case is virtually unintelligible. The portions that are intelligible are
so well hidden among those that are not that Defendant's ability to adequately
glean and investigate the facts is severely hampered. I find that the claim
could be dismissed on this basis alone.
However, the claim does purport to assert certain causes of action, including
harassment, retaliation, constitutional violations, illegal confinement,
conspiracy, lost property and medical malpractice/neglect. I will, therefore,
attempt to address some of these more understandable allegations
Initially, I note that Claimant's notice of intention to file a claim, served
on the Office of the Attorney General, is six handwritten pages and refers only
to causes of action that accrued on July 7, July 8 and September 4, 2002.
However, throughout the claim, Claimant identifies a vast array of events, dates
and locations that he failed to identify in his notice of intention. The role
of a notice of intention is to "afford the State an opportunity to investigate a
claim and prepare a defense," thus "there must be sufficient detail to enable
the State to investigate" (Quinn v State of New York, Ct Cl, unreported
memorandum opinion and order filed September 27, 1995 [Claim No. 91047],
Silverman, J., citing Schwartzberg v State of New York, 121 Misc 2d 1095,
affd 98 AD2d 902). I find that, to the extent Claimant has alleged
causes of action in his claim that relate to events, dates and locations other
than those identified in his notice of intention, those causes of action must be
dismissed, as they failed to afford Defendant with an opportunity to conduct a
meaningful investigation (see Sega v State of New York, 246 AD2d 753).
Also, I note that in both his notice of intention and claim, Mr. Jacobs alleges
that he was assaulted on July 7, 2002. Pursuant to Court of Claims Act
§10(3-b), a claim based upon personal injury resulting from the intentional
tort of an agent of the State, such as is alleged here, must be filed within
ninety days unless Claimant has served a notice of intention to file a claim.
In that event, § 10(3-b) provides: "the claim shall be filed and
served upon the attorney general within one year after the accrual of such
claim." It is a fundamental principle of practice in the Court of Claims that
the filing and service requirements contained in Court of Claims Act § 10
are jurisdictional in nature and must be strictly construed. (Finnerty v New
York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher
Meats v State of New York, 270 AD2d 687). Claimant filed his claim on July
11, 2003. As such, Claimant's cause of action for assault on July 7, 2002 must
be dismissed as untimely.
With respect to his lost property cause of action, Claimant alleges that he
exhausted his administrative remedies as of November 25, 2002, when the
superintendent denied his appeal of the administrative determination against
him. Pursuant to Court of Claims Act § 10(9), a claim by an inmate based
on the alleged loss of personal property " . . . must be filed and served
within one hundred twenty days after the date on which the inmate has exhausted
. . . " all administrative remedies. Defendant argues that the claim is
untimely because it was served on the Office of the Attorney General on June 25,
2003, more than 120 days after November 25, 2002, the date of the denial of
Claimant's last administrative remedy. I agree. Because the claim was served
more than 120 days after November 25, 2002, Claimant's cause of action for lost
property must be dismissed as untimely.
Additionally, to the extent that the claim can be read to assert a cause or
causes of action based upon Defendant's alleged retaliation against Claimant, I
note that the proper venues for so-called retaliation claims are the inmate
grievance procedure and Article 78 proceedings, not the Court of Claims (Zulu
v State of New York, Ct Cl, May 21, 2001 [Claim Nos. 96973 and 96974, Motion
Nos. M-63183 and M-63184], Patti, J., UID # 2001-013-006).
Also, throughout the claim, Mr. Jacobs refers to violations of his Federal
Constitutional rights. Any such purported cause of action must be dismissed as
an action under the Federal Constitution is not cognizable in this Court (see
Ferrer v State of New York, 172 Misc 2d 1, 5; Gill v State of New
York, Ct Cl, January 10, 2001 [Claim Nos. 95917 and 96180], Mignano, J., UID
Similarly, Claimant alleges, at various points within his claim, that the
actions of Defendant were intentionally designed to cause him emotional
distress. However, public policy prohibits an action against the State for
intentional infliction of emotional distress, and, therefore, such a claim is
not cognizable in this Court (Brown v State of New York, 125 AD2d 750,
lv dismissed 70 NY2d 747; Wheeler v State of New York, 104
AD2d 496; De Lesline v State of New York, 91 AD2d 785, lv denied
58 NY2d 610).
To the extent that the claim alleges that Defendant failed to provide Claimant
with adequate medical care, I note that such claims are insufficient as a matter
of law, based upon Claimant's failure to comply with Court of Claims Act §
11 by setting forth how he was injured by any such failure (Patterson v State
of New York, 54 AD2d 147, affirmed 45 NY2d 885: Tafari v State of
New York, Ct Cl, April 3, 2003 [Claim No. 103164, Motion No. M-65946],
Minarik, J., UID #2003-031-013).
Finally, Claimant also alleges that he was given used carbon paper and, on at
least one occasion, ordered out of the prison law library. This alleged wrong,
however, is not something for which this court can compensate Claimant (Gagne
v State of New York, Ct Cl, November 30, 2001 [Claim No. 98686, Motion No.
M-63259], Patti, J., UID #2001-013-029 [inmates do not have an abstract,
free-standing right to a law library]; Leach v Dufrain, 103 F Supp 2d 542
[authorities may regulate the time, place, and manner of library use]).
Based on the foregoing, I find that there is no portion of Mr. Jacob's claim
which sets forth a valid cause of action against Defendant. Accordingly it
ORDERED, that Defendant's motion to dismiss the claim is granted. The
claim is dismissed in its entirety. The Chief Clerk is directed to close the