New York State Court of Claims

New York State Court of Claims

McFADDEN v. THE STATE OF NEW YORK, #2005-030-030, Claim No. 106235


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:
Third-party defendant's attorney:

Signature date:
September 30, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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 plastic. (
See 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."[1]
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 needed."
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 denied 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 CPLR §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 alleged.
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 #2003-032-070.[2] 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 2000a-3(a).
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 York, 186 AD2d 962 (3d Dept 1992); Pryles v State of New York, 86 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[3]
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. [
See Exhibit J-1].
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.
[See 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. [
id.]. 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 and transport.

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 prudence.

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 entirety.

Let Judgment be entered accordingly.

September 30, 2005
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or audio recordings unless otherwise indicated.
[2] Judge Hard's Decision and Order concerning consolidation related to the following claims, including this one: 103390, 103763, 104262, 105851, 105938, 105958. 106195, 106216, 106217, 106235, 105486, 106802, 106926, 107038, 107177, 107203, 107357, 107358, 107510 and 107633.
[3] Claimant also relies on that section of DOCS Directive 2612 entitled "Policy", wherein those inmates found to have sensorial disabilities within certain parameters are to be provided with reasonable accommodations, in conformance with the ADA. [Exhibit J-1]. Purported violations of this policy would similarly not alone provide the basis for a private cause of action for damages.
[4] Another grievance complains about an alleged failure to post signs. [Exhibit G-2].