New York State Court of Claims

New York State Court of Claims
TOOKS v. THE STATE OF NEW YORK, #2006-028-500, Claim No. 106164, Motion No. M-69401
Synopsis

Claim arising from the death of a prison inmate is dismissed because the Court lacks jurisdiction to hear the causes of action based on the United States and New York constitutions, and the causes of action for wrongful death and conscious pain and suffering were not timely filed.
Case Information
UID:
2006-028-500
Claimant(s):
MATTIE TOOKS as Administratrix of the Estate of George Holden a/k/a Gregory Tooks
Claimant short name:
TOOKS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106164
Motion number(s):
M-69401
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
MADUEGBUNA COOPER, LLPBY: Sam O. Maduegbuna, Esq.
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Kathleen M. Arnold, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 10, 2006
City:
Albany
Comments:

Official citation:

Appellate results:
AFFIRMED 40 AD3D 347 3D DEPT 5/24/07
See also (multicaptioned case)


Decision

The following papers were read on Defendant’s motion for summary judgment dismissing the claim:
1. Notice of Motion and Supporting Affirmation of Kathleen M. Arnold, AAG, with annexed Exhibits
2. Affirmation in Opposition of Sam O. Maduegbuna, Esq., with annexed Exhibits and Memorandum of Law

3. Reply Affirmation of Kathleen M. Arnold, AAG

4. Sur-Reply Affirmation of Sam O. Maduegbuna, Esq.

5. Sur-Sur-Reply Affirmation of Kathleen M. Arnold, AAG

Filed papers: Claim; Answer
This claim is based on allegations that on June 18, 2000, at approximately 7:10 p.m., Claimant’s decedent, George Holden, also known as Gregory Tooks, was fatally stabbed by two other inmates at Coxsackie Correctional Facility. The attack occurred in the front recreation area of a prison dormitory in which they and 53 other inmates were housed. The State’s liability for decedent’s death is premised on the alleged negligence of the two Correction Officers assigned to the dormitory on the night in question in failing to provide adequate protection to him from inmates with known violent propensities. The claim sets forth four causes of action: 1) deprivation of decedent’s rights guaranteed by the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, 2) deprivation of decedent’s rights guaranteed by sections 5 and 6 of Article 1 of the Constitution of the State of New York, 3) wrongful death, and 4) conscious pain and suffering. In its answer, Defendant alleges, inter alia, that the Court lacks subject matter jurisdiction over the causes of action alleging constitutional violations and that the claim is untimely. Defendant now moves for summary judgment dismissing the claim.
Claims based on alleged violation of rights secured by the United States Constitution are governed by 42 USC § 1983. The State of New York is not a “person” ammenable to suit under this statute (Will v Michigan Dept. of State Police, 491 US 58 [1989]; 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]).
A cause of action in tort may sometimes arise under the New York State Constitution when: (1) the constitutional provision is self-executing; (2) the substantive right is firmly established; (3) the implied tort is necessary or appropriate to ensure the effectiveness of the provision; and (4) the claimant has no common-law or statutory remedy available to him (see Brown v State of New York, 89 NY2d 172 [1996]; Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]; Remley v State of New York, 174 Misc 2d 523, 526 [Ct Cl 1997]). Here, Claimant had an adequate available remedy in causes of action for wrongful death and conscious pain and suffering, and therefore the fourth requirement cannot be met in this instance.
With respect to the timeliness of those other causes of action, decedent’s death occurred, as indicated, on June 18, 2000. A notice of intention to file a claim was served on the Attorney General by Mattie Tooks “as mother of George Holden” on August 29, 2000 (Arnold Affirmation, Exhibit B). On March 19, 2001, Claimant Mattie Tooks was issued limited letters of administration by the Surrogate’s Court of Greene County (id. Exhibit C). In her capacity as administratrix, Claimant then served a claim on the Attorney General on June 21, 2002 (id. Exhibit D); she served an amended claim on the Attorney General the following month, on July 1, 2002. The original claim was filed with the Court on June 3, 2002 and the amended claim was filed on July 3, 2002.
Section 10(2) of the Court of Claims Act requires that in order to commence an action for wrongful death, the administrator of a decedent’s estate must file and serve a claim or serve a notice of intention within 90 days after appointment. The section further provides that in any event, a wrongful death claim must be filed and served within two years from the death of the decedent. The August 29, 2000 service of a notice of intention has no bearing on the effort to commence the wrongful death claim, because Claimant had not yet been appointed as her son’s administrator (Lichtenstein v State of New York, 252 AD2d 921, affd 93 NY2d 911; Davis v State of New York, 22 AD2d 733). Claimant received such appointment on March 19, 2001, but she took no action within the following 90 day period (i.e., on or before June 17, 2001). In addition, even if a timely notice of intention had been served following Claimant’s appointment as administratrix, the claim itself was not served within two years after the death of decedent (i.e., by June 18, 2002). The cause of action for wrongful death is therefore untimely and must be dismissed.
A claim for pain and suffering is governed by section 10(3) of the Court of Claims Act, which requires that a claim be filed and served or a notice of intention served within 90 days after the date of accrual. If a notice of intention is employed, the claim must then be filed and served within two years after accrual. The August 29, 2000 service of the notice of intention was timely with respect to this cause of action and Claimant, as the decedent’s survivor had standing to commence a pain and suffering action at that time (Pelnick v State of New York, 171 AD2d 734). Once again, however, no claim was served within two years of the accrual of this claim, and consequently this cause of action must also be dismissed.
Inasmuch as the Court lacks jurisdiction to hear any of the asserted causes of action, Defendant’s motion for summary judgment is GRANTED and Claim No. 106164 is dismissed.


January 10, 2006
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims