New York State Court of Claims

New York State Court of Claims

BOTTORFF v. THE STATE OF NEW YORK, #2006-028-575, Claim No. 111588, Motion Nos. M-71187, CM-71269


Synopsis


Herkimer County Correctional Facility does not appear on the list of institutions owned and operated by DOCS (7 NYCRR, Part 100) and thus a claim based on conditions of incarceration within that facility do not lie within the jurisdiction of this Court.


Case Information

UID:
2006-028-575
Claimant(s):
CHET ALLEN BOTTORFF
Claimant short name:
BOTTORFF
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111588
Motion number(s):
M-71187
Cross-motion number(s):
CM-71269
Judge:
RICHARD E. SISE
Claimant’s attorney:
CHET ALLEN BOTTORFF, pro se
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joel L. Marmelstein, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 27, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Defendant’s motion for an order of dismissal and on Claimant’s cross-motion for an order deeming his notice of intention to be a claim:

1. Notice of Motion and Supporting Affirmation of Joel L. Marmelstein, AAG, with annexed Exhibits


2. Notice of Cross-Motion and Supporting Affidavit of Chet Allen Bottorff, pro se


3. Affirmation in Opposition to the Cross-Motion of Joel L. Marmelstein, AAG, with annexed Exhibit


Filed papers: Claim


The Claim in this action sets forth numerous causes of action, all of which relate to the period between October 7 and November 5, 2004, at which time Claimant was incarcerated at the Herkimer County Correctional Facility. Each of the causes of action relates to some aspect of his incarceration (e.g., inadequate water, deficient diet, inadequate sanitation, failure to respect the requirements of Claimant’s religion), and none of them implicate or involve the State of New York.

In lieu of answering, Defendant has moved for an order dismissing the Claim on the ground, among others, that it fails to state a cause of action against the State of New York or any other State-wide entity that is subject to the jurisdiction of this Court. In addition, counsel asserts that the Claim is untimely with respect to any cause of action arising during the dates in question.

Herkimer County Correctional Facility is not listed as one of the facilities owned and operated by the State Department of Correctional Services (hereinafter “DOCS”) (see 7 NYCRR, part 100, §§ 100.1 - 100.130). Because it is owned and operated by the County of Herkimer, lawsuits relating to conditions of incarceration and events occurring in that facility do not fall within the jurisdiction of the Court of Claims (see Green v State of New York, Claim Nos. 102419, 102420, Motion No. M-61863 [Ct Cl July 26, 2000], Marin J., UID #2000-016-052).

In response to Defendant’s motion, Claimant has cross-moved to have his notice of intention (captioned “Notice of Intent to File Suit” and served on the Attorney General on January 7, 2005 [Marmelstein affirmation in opposition to cross-motion, Exhibit B]), deemed the Claim in this motion, pursuant to Court of Claims Act § 10(8). As with the Claim, the causes of action set forth in the notice of intention relate exclusively to the conditions and events of Claimant’s incarceration in the Herkimer County Correctional Facility from October 7 to November 4, 2004.

Inasmuch as Claimant has failed to allege any cause of action that falls within the jurisdiction of the Court of Claims, Defendant’s motion to dismiss Claim No. 111588 is GRANTED and the Claim is DISMISSED. Claimant’s cross motion is DENIED.




July 27, 2006
Albany, New York

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