New York State Court of Claims

New York State Court of Claims

CARDEW v. THE STATE OF NEW YORK, #2005-019-567, Claim No. 110054, Motion Nos. M-69757, CM-70513


State's cross-motion to dismiss based upon equitable nature of relief sought in claim is granted; claim dismissed; and 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:
September 13, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


This is the adjourned return date on claimant's motion for an order compelling defendant to respond to his discovery requests pursuant to CPLR 3124 (Motion No. M-69757).[1] The State of New York (hereinafter "State") cross-moves for dismissal on the ground that the claim fails to state a cause of action pursuant to CPLR 3211 (Cross-Motion No. CM-70513). The court has not received any papers in opposition to the State's cross-motion by or on behalf of claimant.

This claim contains a single cause of action relating to claimant's alleged severe hearing loss. Claimant alleges that prison officials at Elmira Correctional Facility denied his request to make reasonable accommodations for his access to the facility's in-cell television and/or radio system and/or telephone amplifier. Claimant filed a grievance to compel such access on or about October 8, 2004 which he asserts went unanswered, thereby also denying him the ability to appeal any adverse decision. The claim alleges that defendant violated claimant's constitutional rights "[w]hen they refused to provide him reasonable accommodations so he could enjoy the same privileges that all other inmates at Elmira Correctional Facility enjoyed." (Claim, ¶ Thirty-Second).

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 this claim is striking (Claim No. 110054).[2] 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. 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 this claim is 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.

Also, to the extent that claimant attempted to set forth State constitutional violations, this claim must fail as well. 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, claimant could have commenced an Article 78 proceeding. (Bullard v State of New York, 307 AD2d 676, 678). Accordingly, there is no need to imply a cause of action for a constitutional tort in this case.

Consequently, for the reasons stated above, it is ORDERED that the State's cross-motion to dismiss, Cross-Motion No. CM-70513, is GRANTED and Claim No. 110054 is DISMISSED; and claimant's motion to compel discovery, Motion No. M-69757, is DENIED AS MOOT.

September 13, 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 November 4, 2004.
  2. Notice of Motion No. M-69757, dated February 9, 2005, and filed February 15, 2005.
  3. Affidavit of Robert Cardew, in support of motion, sworn to February 9, 2005.
  4. Memorandum of Law, in support of motion, dated February 9, 2005.
  5. Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated March 2, 2005, and filed March 4, 2005., with attached exhibit.
  6. DECISION AND ORDER, Lebous, J., Claim No. 110054, Motion No. M-69757, filed March 16, 2005.
  7. "Affidavit to Grant Motion to Compel Disclosure..." of Robert Cardew, in support of motion, sworn to May 19, 2005, and filed May 25, 2005.
  8. Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated May 31, 2005, and filed June 3, 2005.
  9. DECISION AND ORDER, Lebous, J., Claim No. 110054, Motion No. M-69757, filed June 13, 2005.
  10. Notice of Cross-Motion No. CM-70513, dated July 28, 2005, and filed August 1, 2005.
  11. Affirmation of Carol A. Cocchiola, AAG, in support of cross-motion, dated July 28, 2005, with attached exhibits.

[1] This court previously granted the State's request for an additional adjournment of claimant's discovery motion to September 7, 2005 in order to obtain discovery documents from the various prison facilities. (Cardew v State of New York, Ct Cl, March 14, 2005, Lebous, J., Claim No. 110054, Motion No. M-69757 [UID No. 2005-019-518]; see also Cardew v State of New York, Ct Cl, June 8, 2005, Lebous, J., Claim No. 110054, Motion No. M-69757 [UID No. 2005-019-536]). Thereafter, the State requested that the court hold claimant's discovery motion in abeyance pending the determination of its potentially dispositive cross-motion. (Letter from Carol A. Cocchiola, AAG, dated August 12, 2005). Selected unreported decisions from the Court of Claims are available via the Internet at

[2]These claims are also similar to another claim commenced by claimant which was recently dismissed by this court for the same reasons stated herein. (Cardew v State of New York, Ct Cl, August 11, 2005, Lebous, J., Claim No. 109968, Motion No. M-70447 & Cross-Motion No. CM-70490 [UID No. 2005-019-559]).