New York State Court of Claims

New York State Court of Claims

MARINO v. THE STATE OF NEW YORK, #2005-030-526, Claim No. NONE, Motion No. M-69705


Synopsis



Case Information

UID:
2005-030-526
Claimant(s):
LEO A. MARINO
Claimant short name:
MARINO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-69705
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
LEO A. MARINO, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: ELYSE ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
May 3, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 5 were read and considered on the proposed[1] Claimant's motion for permission to serve and file a late claim pursuant to Court of Claims Act §10(6):
  1. Affidavit in Support of Motion to File a Late Claim by Leo A. Marino, Claimant and attached proposed Claim
  1. Affirmation in Opposition by Elyse Angelico, Assistant Attorney General and attached exhibit
  1. Affidavit in Opposition to Defendant's Response by Leo A. Marino, Claimant, and attached exhibits
4,5 Filed Papers: Claim No. 109623; Answer

After carefully considering the papers submitted and the applicable law the

motion is disposed of as follows:

In order to determine an application for permission to serve and file a late claim, the Court must consider, "among other factors," the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

Additionally, the motion must be timely brought in order to allow that a late claim be filed ". . . at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules . . . " Court of Claims Act § 10(6). Here, the applicable statutes of limitations are two (2) years with respect to any wrongful confinement [See Ramirez v State of New York, 171 Misc 2d 677 (Ct Cl 1997)], and three (3) years with respect to other causes of action, thus the motion is timely. Civil Practice Law and Rules §214.

A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit. See e.g. Jackson v State of New York, Claim No. None, M-64481 (Midey, J., February 28, 2002).

In his Affidavit in Support of this motion, Claimant indicates that he has not found an attorney to represent him, was unaware of the filing periods provided for in the Court of Claims Act and, as an incarcerated person, was unable to confer with counsel, had limited access to a law library and, even with limited access to a law library, would find it of limited utility since he did not know what books to ask for. [Affidavit in Support, ¶¶ 1-4]. He also states that the Defendant ". . . has knowledge and records generated during the court proceeding with respect to this denial [of access to courts] . . . can interview the State employee in this matter. The statute of limitation has not expired. The State was not prejudice[d] in any manner by the failure to file a notice of intention to file a claim." [Affidavit in Support, ¶ 5]. He asserts that he has no other remedy.

The proposed Claim itself sets forth eight different "claims," referred to hereinafter as causes of action. The first cause of action alleges Claimant was denied procedural due process, in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution in the course of a Tier III disciplinary hearing conducted at Sing Sing Correctional Facility (hereafter Sing Sing) on January 20, 2003. Despite obtaining a reversal and expungement of the determination against him on October 28, 2003, he claims he was forced to serve ninety (90) days in the Special Housing Unit (hereafter SHU). He demands $25,000.00 on this cause of action.

The second cause of action alleges Claimant was denied procedural due process, in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution in the course of a Tier II disciplinary hearing at Five Points Correctional Facility (hereafter Five Points) on June 4, 2004. He asserts that the misbehavior report initially charging him was later amended to include an additional inmate, and Claimant was not given advance notice of the amendment. He demands $25,000.00 in damages on this cause of action.

The third cause of action alleges he was denied his Constitutional Right of Access to Courts when his application to extend the time within which to perfect his appeal of the proceedings stemming from the second cause of action was denied on October 29, 2004. He demands $25,000.00 in damages on the third cause of action.

The fourth cause of action alleges he was denied access to courts and equal application of the law when the Appellate Division, First Department, denied his application to proceed as a poor person with reference to an appeal on December 21, 2004. He then states that "[t]his claim is filed within 90 days, thus, no notice of intention to file a claim has been filed." [proposed Claim, ¶ 31]. He demands $25,000.00 on this fourth cause of action.

The fifth cause of action alleges he was denied access to courts and equal application of the law by the Appellate Division, First Department when it denied his application to proceed as a poor person with reference to a lawsuit against Brian G. Anderson of the New York City Records Management Office on December 21, 2004. Here, too, he indicates that no notice of intention was filed because the claim is filed within ninety (90) days. He demands $25,000.00 in damages on this fifth cause of action.

The sixth cause of action alleges that Claimant was denied access to courts and equal application of the law by the Appellate Division, First Department when it denied his application to proceed as a poor person with reference to a lawsuit against the New York City Police Department on September 21, 2004. He demands $25,000.00 in damages on the sixth cause of action.

In the seventh cause of action, Claimant seeks reimbursement of $8.20 to cover the cost of copies he requested on July 30, 2004, at some unspecified location, that were never made. Administrative appeals filed on November 8, 2004 and December 22, 2004 are still pending.

In the eighth cause of action, Claimant seeks reimbursement for his personal property - specifically a typewriter and a hot pot - damaged upon his transfer from Sing Sing to Cayuga Correctional Facility (hereafter Cayuga). He indicates that he filed an administrative appeal on December 14, 2004 seeking reimbursement for the full amount of $54.00 which is still pending. He also indicates that this cause of action is related to a Claim already filed with this court under Claim Number 109623, for personal property loss he alleges he suffered, including these two items, when he was transferred from Sing Sing to Cayuga.

As an initial matter, Court of Claims Act §10(9) provides that an inmate's claim for loss of personal property may not be filed until the administrative remedies provided by the applicable regulations have been exhausted. [See 7 NYCRR Part 1700]. Thereafter, ". . . [s]uch claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy." Court of Claims Act §10(9). Claimant has not exhausted his administrative remedies with respect to his seventh and eighth cause of action and, with respect to his eighth cause of action, there has already been a claim filed addressing the alleged loss under Claim Number 109623. The Court does not intend to address the merits of Claim Number 109623 by referring to it herein, but rather notes that Claimant may not simply file another claim or make the within application with respect to a matter that is already pending in the Court of Claims and has not been adjudicated.

With respect to the remaining causes of action, the Court hereby addresses the factors set forth at Court of Claims Act §10(6).

Claimant's mere incarceration, and movement within the system, and the asserted difficulty in obtaining representation by counsel or otherwise conferring with counsel, does not constitute a reasonable excuse in the nature of a disability, or otherwise. See Plate v State of New York, 92 Misc 2d 1033, 1037-1039 (Ct Cl 1978). There must be some showing that the circumstances of his incarceration prevented claimant from taking effective steps to perfect his claim, or contact an attorney. Bommarito v State of New York, 35 AD2d 458, 459 (4th Dept 1971). Claimant has made no such showing, thus this factor weighs against him.

Similarly, his claim of lack of knowledge of the law and an inability to retain counsel do not constitute acceptable excuses. Innis v State of New York, 92 AD2d 606 (2d Dept 1983), affd, 60 NY2d 654 (1983); Musto v State of New York, 156 AD2d 962 (4th Dept 1989).

The absence of an excuse, however, is but one of the factors to be considered, and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, supra.

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, also weigh against granting Claimant's motion. Indeed, Claimant has not addressed these factors except to say that the State was "aware" that there were administrative appeals pending and/or other civil proceedings brought pursuant to Article 78 of the Civil Practice Law and Rules. While in some cases notice may be inferred if the occurrence would be noted and investigated in the normal course, it cannot be assumed the State had actual knowledge of the facts giving rise to the claim merely because it owns and maintains a correctional facility, or because a report of an incident was filed. Wolf v State of New York, 140 AD2d 692 (2d Dept 1988) (accident report filed and State employee involved in accident); Carmen v State of New York, 49 AD2d 965, 966 (3d Dept 1975) (police accident report and internal memoranda filed); Turner v State of New York, 40 AD2d 923 (3d Dept 1972) (not enough that State maintains facility). Indeed, since the dates of the incidents alleged State employees who may have served as witnesses may have left State employment. The passage of time has been great enough that the State's ability to investigate is impeded to its prejudice. Broncati v State of New York, 288 AD2d 172 (2d Dept 2001). On balance these factors taken together weigh against granting the motion.

As noted, Claimant need not establish his claim prima facie, but rather show the appearance of merit. Jackson v State of New York, supra. If the allegations in the claim are accepted as true for the purposes of the motion, Claimant has not made the requisite showing of merit in order to permit late filing of his claim.

The Assistant Attorney General points out that Claimant's first, second and third causes of action are the subject of Article 78 proceedings pending in the Appellate Division, Third Department. Notably, they also allege violations of the United States Constitution and could be pursued pursuant to 42 USC §1983. No cause of action against the State of New York exists for alleged violations of an individual's rights under the United States Constitution [See Welch v State of New York, 286 AD2d 496, 498 (2d Dept 2001); Zagarella v State of New York, 149 AD2d 503 (2d Dept 1989); Davis v State of New York, 124 AD2d 420, 423 (3d Dept 1986)], in that the State is not a "person" amenable to suit pursuant to 42 USC §1983.

The fourth, fifth and sixth causes of action, too, alleging a denial of access to courts and equal protection of the law among other things, appear to be federal constitutional claims. Moreover, alternative remedies via the appeal process are apparently still pending or available with regard to the fourth, fifth and sixth causes of action, assuming these were even lawsuits involving the State of New York. The fourth cause of action stems from a denial by an appellate court to allow Claimant's appeal as a poor person. Such discretionary denials rest in the discretion of the deciding court. See Howell v Francesco, 190 Misc 2d 188 (Civ Ct, Richmond County 2001). The fifth and sixth causes of action appear to stem from lawsuits against individuals employed by the City of New York or the City agencies employing them. It is axiomatic that the Court of Claims is a court of limited jurisdiction empowered only to hear claims brought against the State of New York and certain limited ancillary matters. Court of Claims Act §9.

If these alleged violations of the "constitution" are intended to refer to violations of the New York State Constitution, Claimant has nonetheless not demonstrated within the analysis set forth in Brown v State of New York, 89 NY2d 172 (1996), that a constitutional tort remedy should apply.

The factors the Court must consider to determine if a cause of action for a State constitutional tort is properly brought in the Court of Claims are whether: (1) the applicable constitutional provision is self-executing; (2) monetary damage remedies further the purpose of the underlying constitutional provisions and necessarily assure its effectiveness; (3) the provisions are such that they impose a clearly defined duty on the State officers and/or employees; (4) declaratory and injunctive relief is inadequate; and (5) money damages necessarily deter governmental conduct and make the claimant whole.

In New York, constitutional provisions are presumptively self-executing. Brown at 186. Violation of every self-executing provision will not always support a claim for damages however. Indeed, since Brown was decided, courts appear to have been reluctant to expand its applicability. See e.g. Martinez v City of Schenectady, 97 NY2d 78 (2001); Harvey v State of New York, 281 AD2d 846 (3d Dept. 2001); Masi Management, Inc. v Town of Ogden, 273

AD2d 837 (4th Dept 2000); Zaire v State of New York, Claim No. 99383 (Mignano, J., filed July 30, 2002).

Only where it is necessary to ensure the effectiveness and promote the purposes of the allegedly violated provision will a constitutional tort remedy be implied. (Brown at 191). Here, the Court is not convinced that any monetary recovery would further the purpose of the underlying constitutional provisions nor, indeed, make the Claimant whole.

Accordingly, and after balancing all the factors set forth in Court of Claims Act §10(6), including the lack of any appearance of merit to the allegations asserted in the proposed Claim, Claimant's Motion No. M-69705 for permission to serve and file a late claim[2] is in all respects denied.

May 3, 2005
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] For ease of reference, the proposed Claimant is hereinafter referred to as Claimant.
[2] In papers filed in "opposition" to Defendant's Affirmation opposing Claimant's motion, Claimant indicates that he is only making application to serve and file six out of the eight claims presented, since two of them are "timely filed." Claimant has clearly misunderstood this Court's role in adjudicating motions brought before it as well as the mechanics of commencing a Claim against the State of New York. None of the causes of action asserted in the proposed claim appended to the present motion have been "filed" against the State of New York.