New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2005-013-014, Claim No. 108835, Motion Nos. M-69692, M-69728


Synopsis



Case Information

UID:
2005-013-014
Claimant(s):
JOSE RIVERA
Claimant short name:
RIVERA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108835
Motion number(s):
M-69692, M-69728
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
JOSE RIVERA, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: PAUL VOLCY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 15, 2005
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


On March 16, 2005, the following papers were read on motion by Claimant for an order compelling Defendant's compliance with certain discovery demands, and on motion by Defendant for dismissal of the claim:

Claimant's Notice of Motion and Affidavit

Defendant's Notice of Motion, Affirmation and Exhibits Annexed

Claimant's Opposing Affidavit

Filed Papers: Claim


Upon the foregoing papers, the State's motion to dismiss is granted in part and denied in part, and the Claimant's motion to compel is granted to the extent noted. There are two motions before me. The first is Claimant's for an order compelling responses to certain discovery demands. The second is the Defendant's motion seeking dismissal of the claim. I will address the latter motion first, since its resolution might obviate the need to decide the first. I note as well that the Defendant's motion is also heard in opposition to the Claimant's motion.

The underlying claim seeks damages from the allegedly unauthorized donation to the Chaplain's Office at Wende Correctional Facility (Wende) of $8.48 worth of foodstuffs belonging to Claimant. This occurred when Claimant was placed in the Special Housing Unit (SHU) at Wende and, since by rule he was not permitted to have personal food items in SHU, and they purportedly could not be stored since they were deemed perishable, he was required to direct disposition of those items. Wende authorities advised him that these items could not be stored, as they were deemed perishable because they were not in "tins" or cans, and since Claimant declined to authorize disposition, to wit, by refusing to sign a form selecting which option he preferred (Exhibit D to Defendant's motion), the Wende authorities donated the foodstuffs to the Chaplain's Office.

The primary issue in dispute is whether the foodstuffs in question, admittedly not in tins, were in fact non-perishable and thus should have been stored pending Claimant's release from SHU without risk of spoiling, etc.

Claimant has included additional alleged damages of $20.00 for his mental and emotional distress in trying to store these food items and in pursuing a facility grievance and appeal, prior to bringing the instant claim (Paragraph 38 of the claim). The Defendant seeks to dismiss this part of the claim on the ground that the intentional infliction of emotional distress is not available against the State of New York. Claimant does not address this issue in his opposition papers. Public policy proscribes actions 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), and accordingly that part of Defendant's motion is granted, and that part of the claim is dismissed.

Claimant has included additional alleged damages of $20.00 for the approximately four hours he spent working on his facility claim based upon a $5.00 per hour rate of pay (Claim, ¶¶ 33-37). Defendant seeks to dismiss that part of the claim on the basis that Court of Claims Act §27 does not permit costs or attorney's fees to be awarded. Claimant does not address this issue in his opposition papers. Section 27 is unequivocal in this regard. Accordingly, that part of Defendant's motion is granted, and that part of the claim is dismissed.

What is left is the question of whether the foodstuffs at issue were properly designated as perishable and subject to required disposition. I am not prepared or able to make that determination inasmuch as it does not appear in writing in Directive #4913 (Defendant's Exhibit E) or otherwise in the papers before me that there is a specific requirement of keeping such foodstuffs in tins in order to deem them nonperishable.

Of course, the claim for damages which survives the State's motion is the relatively modest amount of $8.48. The State argues that the question of whether the foods were arbitrarily and capriciously determined to be perishable because they were not stored in tins would properly be the subject of a CPLR article 78 proceeding. Claimant rejoins, averring that he could not obtain monetary compensation for his alleged losses in an article 78 proceeding. I agree, and that part of Defendant's motion seeking dismissal of the claim for $8.48 for the donated foodstuffs is therefore denied. Of course it has not escaped my notice that the amount sought is exceeded by the $20.00 filing fee imposed by the Hon. Richard E. Sise in this matter.

Claimant served a demand for discovery and inspection and his first set of interrogatories upon the Defendant on October 18, 2004. He alleges that he has had no response whatsoever from the Defendant. Claimant asserts, without refutation, that he served three separate "good faith" letters upon the Defendant on December 3, 2004, December 22, 2004 and January 14, 2005, seeking compliance with his demands or requesting contact to resolve any disputes with said demands. Claimant asserts, without dispute, that he received no response to any of said letters. He now seeks the Court's relief since he avers that he has exhausted his ability to have the Defendant comply. The Defendant does not raise any substantive or procedural argument or objection to the relevance or materiality of the said demands, and indeed does not dispute that it has not responded to the demands or the above-mentioned letters.

Accordingly, unless this matter is otherwise resolved, the Claimant's motion is granted to the extent that the Defendant shall have 30 days from service of a file-stamped copy of this decision and order to comply with and respond to the aforesaid demands. In sum therefore, the Defendant's motion is granted in part and denied in part, and the Claimant's motion is granted to the extent noted.

April 15, 2005
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims