New York State Court of Claims

New York State Court of Claims

KAMPFER v. THE STATE OF NEW YORK, #2006-031-028, Claim No. 110597, Motion Nos. M-71324, CM-71325


Claim fails to set forth cognizable cause of action. Defendant’s motion to dismiss granted.

Case Information

1 1.The caption has been amended, sua sponte, to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended, sua sponte, to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
Defendant’s attorney:
New York State Attorney General
BY: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 6, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 8, were read on motion by Defendant for dismissal of the claim (M-71324) and on cross-motion by Claimant for summary judgment (CM-71325):
1. Defendant’s Notice of Motion to Dismiss Claim, filed February 10, 2006;
2. Affirmation of Joel L. Marmelstein, affirmed February 9, 2006, with attached exhibits;
3. “Notice of Cross Motion for Summary Judgement,” filed February 14, 2006;
4. Affidavit of Douglas E. Kampfer II, sworn to February 13, 2006, with attached exhibits;
5. Affirmation in Opposition of Joel L. Marmelstein, dated February 27, 2006;
6. “Affirmation” of Jeffrey P. Hovey, sworn to February 22, 2006;
7. Letter in Response from Douglas E. Kampfer II, dated March 2, 2006;
8. Filed documents: Claim and Verified Answer.

Defendant has filed a motion to dismiss Claimant’s action (M-71324) and Claimant has made a cross-motion for summary judgment (CM-71325). I will consider both of these motions together.

Defendant moves under CPLR 3211(a)(2) and (7) on the grounds that Claimant has failed to state a cause of action and that this Court lacks subject matter jurisdiction over the claim. Claimant characterizes his action as one for violation of his New York State constitutional liberty guarantees. The claim itself cites federal constitutional violations pursuant to 42 USC 1983 and the U.S. Constitution (1st and 14th amendments).

The underlying facts appear to be as follows: An Environmental Conservation Officer (“ECO”) ticketed Claimant on December 12, 2004 for allegedly violating State Environmental Conservation Law 11-1101(2)(a) (Marmelstein Affirmation, Exhibit C). The ECO testified that claimant set two traps for fisher on state property after the season for trapping fisher had closed (Marmelstein Affirmation, Exhibits D and E). Each trap was labeled with a tag bearing Claimant’s name and address (Id.). The traps were confiscated but returned the same day, December 12, 2004 (Marmelstein Affirmation, Exhibit G). Claimant was found guilty after a trial and fined $50.00 (Marmelstein Affirmation, Exhibits I and J). I understand that his disposition is now on appeal.

To the extent that this claim sounds in alleged violations of the United States Constitution or federal civil rights, they are properly raised in federal court, not in the Court of Claims (Zagarella v State of New York, 149 AD2d 503; Ferrick v State of New York, 198 AD2d 822), thus, this portion of the claim must be dismissed.

Claimant also has alleged a violation of his liberties as “guaranteed under Article 11, title 11, section 11-1101,” that is, his ability to trap mink during open season for mink. In addition, Claimant alleges a deprivation of procedural due process which I assume he construes as a state constitutional right, because of the State Department of Environmental Conservation’s failure to respond to Claimant’s written complaint against the ECO who ticketed him within the 30 days he demanded. I find that neither of these two complaints rise to the level of constitutional tort as defined by Brown v State of New York (89 NY2d 172). As Judge Philip J. Patti stated in Zulu v State of New York (Ct Cl, May 21, 2001 [Claim Nos. 96973 and 96974, Motion Nos. M-63183 and M-63184], UID #2001-013-006),
“A cause of action in tort may sometimes arise under the New York State Constitution . . . But caution should be exercised in recognizing a tort claim based upon the violation of constitutional ‘rights.’ In comparison to the Federal Constitution, the State Constitution ‘touch[es] on subjects and concerns with less attention to any hierarchy of values, and . . . concededly contains references to matters which could as well have been left to statutory articulation’ (Board of Education, Levittown Union Free School District v Nyquist, 57 NY2d 27, 43 n. 5, appeal dismissed 459 US 1138).”
This Court has no subject matter jurisdiction over Claimant’s state constitutional claims and that portion of the claim must be dismissed.

To the extent that Claimant’s allegations can be construed to allege a taking of his personal property, his statement that his two traps “have never been returned” (Kampfer Affidavit, para. 4) flies in the face of not only the “Evidence Seizure Tag” and “Item Returned Ticket” (Marmelstein Affirmation, Exhibit G), but the testimony at the trial, as well (Marmelstein Affirmation, Exhibit I). To the extent the claim alleges a cause of action for bailment, that too must be dismissed.

Based upon the foregoing, it is hereby

ORDERED, that Defendant’s motion is granted and claim 110597 is dismissed. Claimant’s motion for summary judgment is denied in its entirety.

June 6, 2006
Rochester, New York

Judge of the Court of Claims