Reginald McFadden alleges in Claim Number 106235, among other things, that
Defendant's agents failed to provide him with reasonable accommodations in
accordance with the Americans with Disabilities Act (hereafter ADA), and that he
was also damaged by allegedly improper asbestos removal while he was
incarcerated at Clinton Correctional Facility (hereafter Clinton). Trial on the
issue of liability was held on July 15, 2005.
As an initial matter Defendant made several applications to dismiss as
preserved in the second and third defenses of its Answer. Additionally,
Claimant withdrew those portions of his claim alleging he was injured by
exposure to lead paint and by exposure to toxic substances released by burning
Claim No. 106235, ¶¶6 and 7).
Defendant moved to dismiss, on jurisdictional grounds, the cause of action
alleging Claimant was damaged by asbestos removal, asserting that no notice of
intention to file a claim was served, nor was a claim served and filed within
ninety (90) days of accrual. Court of Claims Act §§10 and 11. Based
upon the actual facts stated in the claim this cause of action arguably accrued
at the latest in December 2001, yet the Claim was served upon the Office of the
Attorney General on June 17, 2002, more than ninety (90) days after the accrual
date. Court of Claims Act §10(3). The Claim was filed in the Office of
the Chief Clerk of the Court of Claims on June 17, 2002.
Mr. McFadden alleges that he was exposed to friable asbestos between September
2000 and June 2001, on E-Block, and further alleges that he was exposed to
asbestos from July-August 2001 until December 2001 while housed on B-Block.
[Claim No. 106235, ¶¶4 and 5]. The Claim then recites his movement
within the facility between B-Block and E-Block, until May 4, 2002 when he was
removed from E-Block to his location on D-Block, where he resided when he filed
the claim. No allegations concerning exposure to asbestos are asserted after
December 2001, nor are there any allegations as to how and if claimant was
injured relative to such exposure.
Claimant argued that "the tort was a continuous wrong - ongoing to May 2002,
and CPLR 214 says last wrong alleged."
Claimant also argued that he "filed for his administrative remedies" and had to
"use FOIL to get information needed about asbestos removal. Until . . . [he]
exhausted those remedies . . . [he] couldn't serve the claim." He also asserted
that the "Defendants themselves were the ones who deliberately confused the
issue", and that he "had to go to the Labor Department to get the information he
As noted by the Assistant Attorney General, the factual assertions Claimant
made concerning attempts to get information, and purportedly obstructionist
conduct by the Defendant, are not pertinent to a failure to timely serve a
notice of intention, or to timely service of a claim. The factual allegations
in the claim include his own alleged observations of asbestos removal, not just
advice from an agency as to when and if such removal was done. The claim is that
he was exposed during the removal, thus he was aware of the incident giving rise
to his claim.
A claim accrues generally when damages are reasonably ascertainable.
Augat v State of New York
, 244 AD2d 835 (3d Dept 1997), appeal
91 NY2d 814 (1998). When a continuing wrong - such as a continuing
trespass or nuisance - is alleged, when damages are reasonably ascertainable
appears to be largely fact-driven. Similarly, when the timeliness provisions of
the "toxic" tort statute of limitations are implicated [see
§214-c] - allowing litigants whose actual injuries may surface years after
exposure to calculate a three-year limitations period from when injury is or
should have been discovered - the facts of the particular claim are paramount.
Here, however, Claimant has not alleged any injury, foreclosing all analysis in
any event. All that he has alleged is that during the months he was located on
particular housing blocks, asbestos removal occurred. Claimant could be too late
- or too early - in asserting a claim, since he has not alleged any injury, and
would appear to additionally assume that injury is inevitable given exposure.
Accordingly, on this ground alone, the claim - at least the cause of action
alleging exposure to asbestos but no injury - should be and hereby is dismissed
both because it fails to state a cause of action, and because the claim is
untimely served based upon a reasonable interpretation of the accrual dates
Defendant also moved to dismiss the cause of action asserted in the claim
regarding purported violations of the ADA for two different reasons. This claim
is part of a larger group of cases being heard by Judge Hard, including a cause
of action concerning medical treatment and the provision of accommodations
suitable to the hearing impaired.
See McFadden v State of New York
, Claim Nos. 103390 et al, Motion
Nos. M-66233 et al, filed July 8, 2003, Hard, J., UID
In Claim No. 104262 the same
cause of action is alleged and, as noted in Judge Hard's decision, the cause of
action asserted in this claim is therefore duplicative. This court agrees, and
the cause of action asserting a failure to provide reasonable accommodations to
claimant as a hearing impaired individual in accordance with the ADA is
dismissed for this reason alone.
Additionally, the weight of authority suggests there is no private right of
action for damages triggered by alleged violations of the ADA.
Lugo v St. Nicholas Associates
, 18 AD3d 341 (1st Dept 2005); Tafari v
State of New York
, UID# 2004-031-156, Claim No. 109301, Motion Nos. M-68843,
M-68630 (Minarik, J., November 23, 2004); Murray v State of New York
UID# 2003-032-534, Claim No. 103632, Motion No. M-67346 (Hard, J., December 31,
2003). The statute [see
42 USCA §12101 et seq
] provides for
declarative or injunctive relief, and does not contemplate its use as the basis
for a personal injury action. See
42 USCA §§12188(a) and
It is axiomatic that the Court of Claims is a Court of limited jurisdiction
that may only exercise jurisdiction in cases or controversies for money damages
in which the State or - certain statutorily prescribed entities - is a party.
Court of Claims Act §9. It does not render declaratory judgments except
under very limited circumstances not present here. Court of Claims Act §9
(9-a). The Court does not have the power to grant equitable relief unless
it is incidental to the primary claim for damages. Amberge v State of New
, 186 AD2d 962 (3d Dept 1992); Pryles v State of New York
Misc 2d 205, 209 (Ct Cl 1975), affd
51 AD2d 827 (3d Dept 1976).
Accordingly, that part of the claim asserting violations of the reasonable
accommodations provisions of the ADA
is dismissed for failure to state a cause of action upon which relief can be
granted in this Court.
More substantively, Claimant has not established his claim for damages premised
upon a violation of the ADA or personal injury caused by exposure to asbestos
either prima facie or by a clear preponderance of the credible evidence.
Claimant asserted that he was "qualified for ADA as of April 5, 2002" yet did
not receive reasonable accommodations. By way of background, he said that
during his placement in administrative segregation he wrote to the Nurse
Administrator on July 19, 2000 complaining of an infected ear and hearing loss.
[Exhibit L]. The Nurse Administrator wrote back on July 25
, 2000, advising that prior to having claimant seen by an audiologist, an
appointment had been scheduled for him on August 4, 2000 with a physician to
assess whether he had an infection and/or wax buildup [Exhibit J]. He saw "an
ear, nose and throat doctor" who referred him for an audiological screening. An
audiological screening was conducted by "Dr. Pete Walsh", who rendered a report
dated December 14, 2000. [Exhibit M(ADA)]. Claimant said that the initial
evaluation was "moderately severe to profound sensorial hearing loss." Claimant
was then provided with a hearing aid.
Claimant argued that this verified that he "had a hearing problem," that then
required that "pursuant to Directive 2612 [he] be entitled to accommodations."
Claimant referred to the definitions contained in Directive 2612 concerning
"sensorial disability." [Exhibit J-1]. Claimant argues that he "would fall under
F or G (that is deaf or hard of hearing) given the audiology report containing
the narrative" description. Notably, the definitions in the directive are based
upon objective tests expressed in terms of decibel levels, and presumption of
hearing aids is at least one accommodation provided for. [
Several hours of testimony later, the gravamen of his claim is that given his
"severe hearing loss, in an environment dependent upon being able to hear
announcements over loudspeakers, or bells", he should have been provided with
some unspecified accommodations pursuant to ADA and Directive 2612.
He testified: "I have problems in functioning in this environment, I can't use
the phone properly, I can't watch television, or involve myself in programs.
DOCS has an obligation to provide a safe environment. Hearing is my first
defense. Someone walks behind me in this environment and wants to put a knife
in my back, without my hearing I . . . " am in danger. "They are supposed to
provide me with reasonable accommodations which they have not done not for any
valid reason like my not qualifying but rather as a personal agenda on the part
of DOCS to confine me and isolate me to prevent me from access to the court. The
whole time I was in administrative segregation I was not examined by medical
people. They've placed me in a facility that does not have reasonable
accommodations while other facilities do - like Eastern Correctional facility -
with the result being they can keep me segregated. I have been provided with
seven sets of hearing aids; they don't do enough for me
in this environment. If I didn't have a problem, then why issue all
those hearing aids?"
One specific instance where his alleged hearing loss caused a problem was when
he failed to follow a direct order he alleges he did not hear and was subject to
discipline. He received a misbehavior report on March 31, 2001 for refusing a
direct order [Exhibit O-1], that was ultimately dismissed, but he said that this
"shows the problems." He testified that after this experience he filed a
grievance. [Exhibit O-3]. By way of resolution of his grievance a note was put
up on the housing block saying that he had a hearing problem, and officers would
knock on the bars to get his attention. William Davison, an inmate neighbor,
would knock on the wall to wake him up.
In connection with this cause of action Claimant also submitted a physical
examination report from September 8, 1995 he indicated was from his initial
reception at DOCS [Exhibit N], showing, he alleged, that his hearing was
"normal" when he was first incarcerated.
With regard to his claim that he was exposed to asbestos, the same problems
arise. Even assuming that there was asbestos removal occurring near him, he has
not established that there was any negligence associated with the removal, or
that he was harmed.
In support of this cause of action, Claimant read the legislative findings and
declarations from the State regulations, and said: "because the legislature
declares that asbestos is a health hazard, and it is known that exposure can
exacerbate medical conditions . . ." he had been, presumably, damaged.
Exhibit X, 12 NYCRR Part 56 §900 et seq
]. He testified:
"The facilities are known to be in bad shape. There is no cure for asbestosis.
Once exposed - and I can recognize it, take precautions, cover my face and get
away - but defendants should at least put a sign up - they didn't do it on
E-Block when removing it from the attic, they didn't do it on B-Block while
changing locking mechanisms. The prison cells have a catwalk behind them that
goes down to the basement. Many of the pipes in the basement are covered with
asbestos. There was lots of patch up kind of work."
He said that when he "saw asbestos", he made a Freedom of Information Law
(hereafter FOIL) request, receiving a response from the Inmate Records
Coordinator (hereafter IRC) at Clinton dated December 14, 2001 "denying" many of
his requests. [Exhibit A]. He was advised therein that the documents he
requested either did not exist, or might be available elsewhere, and it was
suggested that he contact Albany. [
Appeals to the Commissioner [Exhibit A-1] and the January 8,
2002 response [Exhibit C] confirmed again that the facility and the agency did
not have the documents he requested.
A FOIL request to the Department of Labor on June 25, 2002 [Exhibit D] garnered
a July 23, 2002 response to some of his questions, referred some of his
questions to the Department of Health [Exhibit D-1] and perhaps enclosed -
although it is not clear from the text or from Claimant's testimony - three
"Asbestos Project Notification" forms that indicate some type of project at
Clinton between November 5, 2001 and December 5, 2001 [Exhibit G-4a], February
27, 2001 and March 5, 2001 [G-4b], and June 6, 2002 and December 6, 2002
[Exhibit G-4c]. Mischaracterizing the very specific statements contained in the
Clinton IRC's FOIL response of December 14, 2001 [Exhibit A], Claimant testified
that these show that the IRC was wrong when she said there were "no
notifications" because "there was ongoing asbestos removal," and there were "two
companies employed, a waste remover and a waste disposal company" and the
"documents were supposed to be kept on file at the facility level per the
regulations in Exhibit X."
When Claimant filed a grievance on "like December 31, 2001." The
Superintendent's response acknowledges that there is asbestos present, and says
there is no requirement that it be removed. [Exhibit G-1]. The response also
indicates: "You stated that you sent a sample out to be tested, this is a
violation itself. You must be certified by the State to handle asbestos. Your
actions not only put yourself at risk but all others in the area that the
asbestos was disturbed . . ." [
Interrogatories and responses discussed at trial briefly appear to confirm that
somewhere and sometime there was asbestos removal at Clinton.
When asked to clarify what he sought in this cause of action, Claimant said "I
am an inmate - they are supposed to take care of my medical care. They put me
in cells in E- and B- Blocks when asbestos was being removed and I was exposed
between September 2000 and January 1, 2001 in E-Block; and on B-Block between
December 2001 to April 2002. I was denied information about asbestos removal.
I already was exposed to TB problems because of defendant's negligence and under
treatment for another medical condition that may very well have been exacerbated
by the exposure."
Claimant said that there were "dumpsters behind the hospital that are visible
from the waiting area - there was asbestos in a dumpster wrapped up - I am not
arguing that they were not wrapped correctly, but that they were then picked up
and taken to another state by a company not licensed to do so. They know they've
been moving asbestos illegally . . ." and were not forthright about the removal
Claimant also submitted a typewritten copy of 9 NYCRR Part 7651.1 [Exhibit Y];
and another FOIL request response from the Clinton IRC dated August 12, 2003
indicating the document he wanted was available for 25 cents [Exhibit H]. Labor
Department notices concerning "asbestos related applicable variances" [Exhibit
X-1 for identification];
a "list of licensed asbestos contractors" [Exhibit Z for identification] and an
incomplete medical record - it appears that only a certification page or
selected pages were provided [Exhibit I for identification] - were also offered
but are hereby excluded on relevancy, authenticity and completeness grounds.
No other witnesses and no other marginally relevant documents were presented on
Claimant's direct case.
Clinton Deputy Superintendent for Administration Paul M. Knapp testified for
the Defendant. He indicated that his duties include maintenance of the physical
plant at Clinton. He testified that there was no asbestos removal from E-Block
between September 2000 and June 2001. Similarly, between July or August 2001 to
December 2001 there was no asbestos removal from B-Block. From July 2001 to
December 2001 the locking system was being replaced in B- Block. There was no
asbestos removal as part of the locking system replacement project.
On cross-examination the witness confirmed that asbestos exists at Clinton. It
is in proximity to the cat walks behind the E-Block cells. He agreed that there
are open vents in each cell allowing air in, but the air flow direction is from
the front of the cell to the back - not from the cat walk as suggested by
Claimant. He stated that even if there were loose fibrous asbestos in the cat
walk, it would not blow into the cells, because there are fans outside on the
flats and fans in the cat walks themselves. Deputy Knapp agreed that between
April 2001 and June 2001 there was asbestos being removed at Clinton, but could
not specifically state every individual area. He agreed there was a project in
the hospital area.
Sheryl Miller, a nurse practitioner from Clinton, also testified for Defendant.
She had been working at Clinton since February 2002, and was familiar with
Claimant's medical record. In an audiology-exam report concerning Claimant by a
consultant dated May 3, 2001 that she identified and read, it is stated "Patient
properly counseled and instructed. Patient responds reliably and consistently to
conversational and reduced level speech. Hearing communication difficulties
with every day speech without right hearing aid and speech reading. Functional
overlay hearing loss. Patient may have hearing loss - but severely exaggerated.
Strong indication of non-organic hearing loss." [Exhibit 1]. The
"recommendations" section provides: "functional hearing communication per daily
listening needs and all facilities. Patient is not a special-
needs/special-accommodations candidate. Patient not a candidate for any
amplification for ADL's unless subjective and objective results reliable per
observation . . . no special accommodations recommended."
On cross-examination, the witness reiterated that the report stated that
Claimant was not a special-needs candidate. When shown the audiology report from
December 14, 2000 [Exhibit M(ADA)], she could not say, when asked, whether
"Walsh was in a position to recommend ADA", without "seeing what audio was
requested for on the consultation form." She repeated that the more recent
testing by the audiologist - "Sirhan" - in Exhibit 1 "had found that the
subjective results didn't tally with objective ones." She said Claimant had
been fitted with amplification devices and is seen as needed. The question of
whether he would need more help is always ongoing.
To establish a prima facie case of negligence the following elements must
exist: (1) that defendant owed the claimant a duty of care; (2) that defendant
failed to exercise proper care in the performance of that duty; (3) that the
breach of the duty was a proximate cause of plaintiff's injury; and (4) that
such injury was foreseeable under the circumstances by a person of ordinary
Claimant failed to establish a prima facie case that he is a sensorially
deprived individual who has been denied reasonable accommodations under the ADA
or pursuant to DOCS policy as provided in Directive 2612, and that he has
suffered injury proximately caused by such denial. The underlying issue
concerning his alleged hearing loss is not established by any medical testimony,
nor is the adequacy of any treatment or "accommodations" given.
Claimant also failed to establish that he was exposed to asbestos to a level
that has been scientifically determined to be harmful to human health nor has he
demonstrated any injury. Almost all the evidence he submitted is irrelevant.
He has not shown that during the period asserted in the Claim he experienced
exposure to fibers in the air that became embedded in his lungs causing an
illness related to asbestosis or some other medical condition. Indeed, he does
not assert any injury nor has he proved one. Claimant cannot simply say - as he
did at trial - that "everyone knows that it's a problem to be exposed. I may
very well come down with a disease."
The Defendant's motion to dismiss for failure to establish a prima facie case -
as well as its procedural motions - upon which decision was reserved at the time
of trial, is hereby granted, and Claim Number 106235 is dismissed in its
Let Judgment be entered accordingly.