New York State Court of Claims

New York State Court of Claims

JACOBY v. STATE OF NEW YORK, #2007-037-009, Claim No. 112544, Motion Nos. M-72649, CM-72687


Synopsis


Defendant’s motion to dismiss is granted only to the extent of dismissing the causes of action in the amended claim for constitutional torts, for retaliation and for the intentional infliction of emotional distress, but is otherwise denied. Claimant’s cross-motion for permission to file and serve a further amended claim is denied as being unnecessary.

Case Information

UID:
2007-037-009
Claimant(s):
BRENT JACOBY, 05-B-0361
Claimant short name:
JACOBY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112544
Motion number(s):
M-72649
Cross-motion number(s):
CM-72687
Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Brent Jacoby, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Richard B. Friedfertig, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 16, 2007
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to Defendant’s motion to dismiss and


pro se Claimant’s cross-motion for leave to further amend the amended claim:

1. Defendant’s notice of motion and supporting affidavit of Richard B. Friedfertig

sworn to December 8, 2006, with annexed Exhibits A-C;

2. Claimant’s notice of cross-motion and unsworn affidavit of pro se Claimant Brent

Jacoby dated December 13, 2006, with annexed Exhibits A-E, in support of Claimant’s cross-motion and in opposition to Defendant’s motion.[1]


Filed papers: Amended Claim filed November 9, 2006.

The amended claim arises out of an incident which occurred on December 21, 2005, when a correction officer at Lakeview Shock Incarceration Correctional Facility (Lakeview Shock) where Claimant was incarcerated, found three law books which allegedly belonged to the facility law library while packing up Claimant’s possessions for discharge from S-block. The following day, December 22, 2005, a misbehavior report (Defendant’s Exhibit A) was prepared by a different correction officer alleging that Claimant violated Rule 116.10 for destruction and theft of State property. After a Tier II hearing was conducted, the hearing officer returned Federal Judicial Civil Procedure & Rules to Claimant, but found him guilty with respect to the Jailhouse Lawyer’s Manual and the Prisoner’s Self-Help Litigation Manual. Claimant was sentenced to 30 days in keeplock and fined $70 restitution. This determination was affirmed upon administrative review.

Claimant then brought an Article 78 proceeding before the Honorable Paula Feroleto, Justice of the Supreme Court. Before her honor rendered a decision, an Assistant Attorney General advised that the determination made at the conclusion of the Tier II hearing had been reversed and that Claimant’s institutional file was being expunged (see Justice Feroleto’s May 17, 2006 decision and order annexed as Defendant’s Exhibit C). As a result, Justice Feroleto held that the portion of Claimant’s petition seeking reversal of the Tier II hearing determination and expungement of his files was rendered moot. Justice Feroleto did, however, grant the remaining portions of Claimant’s petition and directed the return to Claimant of any and all materials taken from him and reimbursement for any and all costs, fees or fines associated with the Tier II hearing or Claimant’s efforts to reverse its determination (Defendant’s Exhibit C). In a letter dated June 28, 2006, an Assistant Attorney General advised Justice Feroleto that the two books confiscated from Claimant could not be returned to him because they were no longer available at Lakeview Shock and were presumably destroyed (see letter of June 28, 2006 annexed to Claimant’s papers as Exhibit D).

In lieu of answering pro se Claimant’s amended claim, Defendant moves to dismiss the amended claim pursuant to CPLR § 3211 (a) (2), (5) and (7), or, in the alternative, to strike the amended claim for failure to comply with the Court’s previous decision and order (Jacoby v State of New York, Ct Cl, October 3, 2006, Moriarty, J., claim no. 112544, motion no. M-72226, UID # 2006-037-025).[2]

The Court agrees with Defendant that insofar as Claimant’s amended claim attempts to assert a cause of action based on alleged violations of the United States Constitution that the Court does not have jurisdiction over such claims as the State is not a person amenable to suit pursuant to 42 USC § 1983 (see Zagarella v State of New York, 149 AD2d 503 [1989]). Likewise, Claimant has failed to state a cause of action pursuant to the Constitution of the State of New York. The Court of Appeals in Brown v State of New York, 89 NY2d 172 [1996], determined that certain provisions of the New York State Constitution were actionable as constitutional torts in the Court of Claims. However, where as here, there is available to a claimant other remedies, courts have declined to entertain a constitutional tort cause of action (see Safran v State of New York, Ct Cl, December 21, 2006, Fitzpatrick, J., claim nos. 112556, 112611, motion no. M-72239, UID # 2006-018-553). Thus, the amended claim is dismissed insofar as it attempts to assert a constitutional tort cause of action under the United States Constitution or under the Constitution of the State of New York.

The Court also agrees with Defendant that the proper venue for retaliation claims is the inmate grievance procedure and a possible Article 78 proceeding, and not the Court of Claims (Johnson v State of New York, Ct Cl, September 19, 2005, Moriarty, J., claim no. 103182, UID # 2005-037-506; Zulu v State of New York, Ct Cl, May 21, 2001, Patti, J., claim nos. 96973, 96974, motion nos. M-63183, M-63184, UID # 2001-013-006). And, insofar as the amended claim may be read as asserting a cause of action for the intentional infliction of emotional distress, it is similarly dismissed as such a cause of action is precluded by public policy (Brown v State of New York, 125 AD2d 750 [1986]; Wheeler v State of New York, 104 AD2d 496 [1984]).

The Court does not agree, however, that the amended claim fails to state a cause of action for unlawful confinement. While Defendant is correct that disciplinary decisions and the actions of correction officers that are prosecutorial or quasi-judicial are protected by immunity, this immunity disappears if the alleged wrongful actions relating to such disciplinary decisions were taken without authority or in violation of governing rules or regulations (Arteaga v State of New York, 72 NY2d 212 [1988]). Moreover, actions that are ministerial in nature are not immunized (Lauer v City of New York, 95 NY2d 95 [2000]; Tango v Tulevech, 61 NY2d 34 [1983]). Taking all the allegations in the amended claim as true and giving Claimant as the nonmoving party every favorable inference, the Court concludes that Claimant has alleged sufficient facts to state a cause of action for unlawful confinement as well as, inter alia, causes of action for loss of personal property, for loss of program wages and other privileges, and for ministerial error.

Finally, in the event that this Court does not completely dismiss Claimant’s amended claim, Defendant moves to strike Claimant’s amended claim for failing to comply with the Court’s previous decision and order (see Jacoby v State of New York, Ct Cl, October 3, 2006, Moriarty, J., claim no. 112544, motion no. M-72226, UID # 2006-037-025). This portion of Defendant’s motion is denied. In response to Defendant’s earlier motion for a more definite statement (M-72226) and the Court’s October 3, 2006 decision and order, Claimant served and filed an amended claim which is in conformity with the Court’s prior decision and order and with § 11 (b) of the Court of Claims Act as it adequately gives Defendant sufficient information to enable the State to investigate the claim and to ascertain its liability (see Lepkowski v State of New York, 1 NY3d 201 [2003]). Because Defendant’s motion to dismiss the amended claim in total is denied as well as Defendant’s motion to strike the amended claim, Claimant need not file and serve another amended claim. Therefore, Claimant’s cross-motion (CM-72687) for permission to file and serve a further amended claim is denied as being unnecessary. Defendant shall file and serve an answer to the Claimant’s amended claim within forty days of the filing of this decision and order.

Accordingly, it is hereby

ORDERED, that Defendant’s motion to dismiss the amended claim (M-72649) is granted only to the extent of dismissing any causes of action asserted therein for constitutional torts under the United States Constitution or the Constitution of the State of New York, for retaliation, or for intentional infliction of emotional distress, but is otherwise denied. And it is further

ORDERED, that Claimant’s cross-motion (CM-72687) for permission to file and serve a further amended claim is denied as being unnecessary.



February 16, 2007
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1]. Because Claimant’s affidavit is unsworn, the Court may treat it as a nullity. The Court has, however, read and considered Claimant’s unsworn affidavit.
[2]. This and other unreported Court of Claims decisions may be found on the Court’s website at www.nyscourtofclaims.state.ny.us.