New York State Court of Claims

New York State Court of Claims

JACOBS v. THE STATE OF NEW YORK, #2004-031-054, Claim No. 107999, Motion No. M-67172


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:
New York State Attorney General
BY: PAUL VOLCY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 20, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on motion by Defendant for dismissal of the claim:
1. Defendant's Notice of Motion, filed July 17, 2003;
2. Affirmation of Paul Volcy, Esq., dated July 16, 2003, with attached exhibits;
3. Defendant's Memorandum of Law, dated July 16, 2003;
4. Claimant's unsworn response, filed July 28, 2003, with attached exhibits;
5. Reply Affirmation of Paul Volcy, Esq., dated July 29, 2003;
6. Claimant's "Reply to Defendant's Reply," sworn to August 1, 2003;
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 decipher.

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 separately.

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 # 2001-029-042).

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 is,

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 file.

May 20, 2004
Rochester, New York

Judge of the Court of Claims