New York State Court of Claims

New York State Court of Claims

CARDEW v. THE STATE OF NEW YORK, #2005-019-559, Claim No. 109968, Motion Nos. M-70447, CM-70490


State's cross-motion to dismiss based upon equitable nature of relief sought in claim is granted and claim dismissed; claimant's motion to compel disclosure is denied as moot.

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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
August 11, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for an order compelling defendant to respond to his discovery requests pursuant to CPLR 3124. The State of New York (hereinafter "State") opposes the motion and cross-moves for dismissal on the ground that the claim fails to state a cause of action pursuant to CPLR 3211. The court has not received any papers in opposition to the State's cross-motion by or on behalf of claimant.

This claim alleges three causes of action. Claimant's first cause of action alleges that upon his transfer to Southport Correctional Facility (hereinafter "Southport") on May 7, 2004 he discovered that the facility did not serve pork products. Claimant filed a grievance with Southport to compel prison officials to serve pork products alleging the failure to serve pork, forced claimant to participate in the Muslim or Jewish religions against his wishes. Claimant's grievance was denied on June 14, 2004 and upheld on appeal to the superintendent on July 14, 2004.

Claimant's second cause of action relates to his alleged severe hearing loss. Claimant alleges that Southport officials denied his request to make reasonable accommodations for his access to the facility's in-cell radio system and telephone amplifier. Claimant filed a grievance to compel such access which was denied on July 26, 2004 and upheld after appeal to the superintendent on July 29, 2004. Claimant further alleges that the Central Office Review Committee failed to respond to his appeal thereof.

Claimant's third cause of action restates the first two causes of action in terms of the State's "[n]egligence, discrimination and violation of claimant's New York State Constitutional Rights..." and alleges he suffered, among other things, "severe mental shock and mental anguish" as a result thereof. (Claim, ¶ "FORTY-THIRD").

The court will first address the State's cross-motion for dismissal since it addresses jurisdictional issues. It is well-settled that:
[o]n a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory [citations omitted]....In assessing a motion under CPLR 3211 (a) (7)...'the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one' [citations omitted].

(Leon v Martinez, 84 NY2d 83, 87-88).

The State's basis for dismissal is that the nature of the relief sought in this claim is equitable in nature, not monetary, which prevents this court from exercising jurisdiction over this claim. The court agrees. It is well-settled that "[a]s a court of limited jurisdiction, the Court of Claims has no jurisdiction to grant strictly equitable relief [citations omitted]." (Madura v State of New York, 12 AD3d 759, 760, lv denied 4 NY3d 704). Rather, the equitable powers possessed by the Court of Claims are limited to those set forth in the Court of Claims Act or incidental to enforcement of a claim for money damages. (Court of Claims Act 9). In other words, this court is without power to direct equitable relief unless such relief is incidental to a claim for money damages. (Psaty v Duryea, 306 NY 413, 416).

As such, this court must determine whether the equitable relief which this claim seeks is the essential nature of this claim or merely incidental to a claim for money damages. The State refers the court to a recent decision issued by my learned colleague the Hon. Renée Forgensi Minarik involving this same claimant and similar allegations. In Claim No. 110309, Judge Minarik found claimant sought strictly equitable relief and, as such, dismissed the claim. (Cardew v State of New York, Ct Cl, May 27, 2005, Minarik, J., Claim No. 110309, Motion No. M-69795). The similarity of the claim addressed by Judge Minarik (Claim No. 110309) to the second cause of action set forth in this claim (Claim No. 109968) is striking. In Claim No. 110309, claimant filed a grievance with Auburn Correctional Facility alleging its failure to provide reasonable accommodations for his access to the radio and telephone systems in the facility due to his hearing disability, nearly identical to the second cause of action here. (State's Ex. B). Judge Minarik dismissed Claim No. 110309 finding that "[a]lthough Claimant has asked for money, his essential claim is equitable in nature. What he really seeks is an order compelling Defendant to provide him with the items Claimant requested as accommodations for his hearing loss." (Id. at p 3). Further, Judge Minarik observed that even assuming "[t]he existence of a breach of a duty, Claimant has failed to set forth in the claim specifically how he was injured by not receiving the items he mentions and, as a result, his claim fails to comply with Court of Claims Act § 11 [citation omitted])." (Id.). This court finds that the second cause of action here is nearly identical to the claim dismissed by Judge Minarik and should be dismissed for the same reasons, namely that the essential nature of this cause of action is for equitable relief.

With respect to the first cause of action, the State contends that claimant's allegation regarding Southport's failure to serve pork products is essentially a request for relief which is strictly equitable in nature, namely to compel Southport to serve pork products. This court agrees. Consequently, for the same reasons stated above, the court finds that the first cause of action seeks relief which is strictly equitable in nature thereby depriving this court of jurisdiction over the same.

Finally, claimant's third cause of action alleges state constitutional violations. Although the Court of Appeals has recognized a cause of action for constitutional torts (Brown v State of New York, 89 NY2d 172), it is well-settled that a constitutional tort remedy will not be implied when adequate alternative remedies exist. (Augat v State of New York, 244 AD2d 835, 837, lv denied 91 NY2d 814). Here, although claimant pursued inmate grievances, if he was dissatisfied with the results of the grievance process, then he should have commenced an Article 78 proceeding. (Bullard v State of New York, 307 AD2d 676). Accordingly there is no need to imply a cause of action for a constitutional tort in this case.

Accordingly, for the reasons stated above, it is ORDERED that the State's cross-motion to dismiss, Cross-Motion No. CM-70490, is GRANTED and Claim No. 109968 is DISMISSED; and claimant's motion to compel discovery, Motion No. M-70447, is DENIED AS MOOT.

August 11, 2005
Binghamton, New York
Judge of the Court of Claims

The court has considered the following papers in connection with these motions:
  1. Claim, filed October 18, 2004.
  2. Verified Answer, filed November 22, 2004.
  3. Notice of Motion No. M-70447, dated July 7, 2005, and filed July 14, 2005.
  4. Affidavit of Robert Cardew, in support of motion, sworn to July 7, 2005.
  5. Notice of Cross-Motion No. CM-70490, dated July 27, 2005, and filed August 1, 2005.
  6. Affirmation of Carol A. Cocchiola, AAG, in support of cross-motion, and in opposition to motion. dated July 27, 2005, with attached exhibits.