New York State Court of Claims

New York State Court of Claims

WHITE v. STATE OF NEW YORK, #2007-037-017, Claim No. 105960, Motion No. M-72739


Synopsis



Case Information

UID:
2007-037-017
Claimant(s):
WILLIS L. WHITE
1 1.The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Claimant short name:
WHITE
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105960
Motion number(s):
M-72739
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Willis L. White, 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:
April 3, 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, compel discovery and preclude:
1. Defendant’s notice of motion and supporting affidavit of Assistant Attorney General

Richard B. Friedfertig sworn to December 27, 2006, with annexed Exhibits A-E;

2. Claimant’s affidavit in opposition to Defendant’s motion to dismiss, compel

discovery and preclude sworn to February 7, 2007, with annexed document entitled “Exhibit;”

3. Defendant’s supplemental notice of motion and supporting affidavit of Assistant

Attorney General Richard B. Friedfertig sworn to March 26, 2007, with annexed Exhibit A.


Filed papers: Claim filed April 24, 2002; Answer filed May 29, 2002.

On April 24, 2002, pro se Claimant Willis L. White filed a prolix claim generally alleging causes of action for loss of personal property, wrongful misbehavior report, wrongful confinement in SHU, and denial of medication which all allegedly occurred while the Claimant was incarcerated at Gowanda Correctional Facility (Gowanda). On May 28, 2002, Defendant served its answer, together with a demand for verified bill of particulars, a notice for discovery and inspection, a demand for collateral sources, a demand pursuant to CPLR 3101 (d), a notice for examination before trial, and demands for authorizations (see Defendant’s Exhibit B). On February 14, 2007, Claimant served and filed his bill of particulars in response to Defendant’s demand.

According to the claim and to the supporting affidavit of Defendant’s counsel, an incident occurred in the mess hall at Gowanda on October 1, 2001, which resulted in a misbehavior report against Claimant. A Tier III hearing on the charges in the misbehavior report concluded on October 27, 2001. Claimant was apparently found guilty of the charges and allegedly spent 67 days in SHU as a result of this determination. Before the completion of his stay in SHU, Claimant was transferred to Attica Correctional Facility (Attica). According to an Attica memorandum dated November 15, 2001, attached to the claim, Claimant was to be released from SHU upon his transfer to Attica and the remainder of his SHU time was to be spent in cell confinement in general population (keeplock). According to another memorandum written at Attica, Claimant was to be released from keeplock status on December 11, 2001, his records were to be expunged and his privileges restored (see Defendant’s Exhibit D). Defendant now moves to dismiss all but the bailment or loss of personal property cause of action on the grounds that the Court does not have jurisdiction over the remaining claims, for an order compelling discovery, and/or for a preclusion order.

Motion to Dismiss

Pursuant to § 10 (3) of the Court of Claims Act, a negligence claim must be filed and served upon the Attorney General within 90 days of accrual unless the Claimant serves upon the Attorney General within the same 90-day period a notice of intention to file a claim, in which event the claim may be filed and served within two years of the accrual of the claim. The service and filing requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]).

On January 17, 2002, the Attorney General’s office received from Claimant two notices of intention to file a claim (see Defendant’s Exhibit C). The first notice of intention alleges the loss of personal property which allegedly occurred at Attica on November 15, 2001. While it has been held that a notice of intention may not be used to expand the time period for commencing a bailment claim under § 10 (9) of the Court of Claims Act (see Verdel v State of New York, Ct Cl, January 10, 2006, Sise, P. J., Claim No. None, Motion No. M-70055, UID # 2006-028-504),[2] Defendant has not moved to dismiss the loss of personal property or bailment cause of action and so this notice of intention needs no further discussion. The second notice of intention alleges that a claim arose at Gowanda on October 1, 2001. The nature of the claim was described in the notice as follows:
“Tier III Disciplinary Hearing Officer And Officials were Effective [sic] doing [sic] the hearing with delay for know [sic] reason when make a telephone & talked with Officer & Assistant refuse to do the Hearing Job to get witnesses. Sgt. with know [sic] understand [sic] about Incident on Family.”

Claimant’s first cause of action in his claim involves the allegedly wrongful misbehavior report which arose out of an incident which occurred at Gowanda on October 1, 2001. Presumably, the misbehavior report would have been written on October 1, 2001 or shortly thereafter. In order for this cause of action to have been raised timely it had to have been asserted in a claim or in a notice of intention to file a claim served within 90 days of October 1, 2001 when this cause of action accrued. The notice of intention was served on January 17, 2002, and the claim was filed and served on April 24, 2002, both more than 90 days after this cause of action accrued. Accordingly, claim no. 105960 is dismissed insofar as it alleges a cause of action based on a wrongful misbehavior report issued as a result of the October 1, 2001 incident at Gowanda.

Claimant also alleges in his claim that he was denied medication when he was transferred into Gowanda. In the 125 pages attached to the claim, it is noted that Claimant transferred into Gowanda on September 28, 2001 and was transferred from Gowanda to Attica on or about November 15, 2001. There are also references in the pages annexed to the claim that Claimant complained that he was denied medication while he was in SHU at Gowanda. Nothing in the claim or in the pages annexed thereto reference any complaint about the lack of medication after Claimant was transferred to Attica. Thus, any cause of action for medical negligence or malpractice had to be alleged in a claim or in a notice of intention served on the Attorney General within 90 days of November 15, 2001, when Claimant was transferred to Attica, representing the latest possible accrual date for such a cause of action. Unfortunately, the claim was filed and served more than 90 days after the November 15, 2001 latest accrual date, and the notice of intention, while served within the requisite 90-day period of time, fails to allege anything about medication or the lack thereof and fails to give Defendant notice that such a cause of action would be claimed against it (see Lepkowski v State of New York, 1 NY3d 201 [2003]). Accordingly, claim 105960 is dismissed insofar as it attempts to allege a medical negligence/malpractice cause of action.

Giving the Claimant the benefit of every doubt and giving his notice of intention a liberal reading, Claimant does allege in his notice of intention that he was denied effective assistance and the right to call witnesses during his Tier III hearing, and that the hearing was commenced and/or completed in an untimely manner. In the affidavit submitted in support of Defendant’s supplemental motion, Defendant’s counsel argues that any issues relating to this hearing “or its consequences” should be deemed moot in addition to being untimely and outside the jurisdiction of the Court (see Friedfertig affidavit sworn to March 26, 2007, ¶ 22). Granted, Claimant could have commenced an Article 78 proceeding in state court regarding the outcome of the Tier III hearing and, arguably, such an action would have been rendered moot by his subsequent release from keeplock and the expungement of his records. It does not follow, however, that all issues relating to the hearing and its consequences were thus rendered moot or are untimely or are not subject to the jurisdiction of the Court.

Claimant alleges in his claim that he was wrongfully confined for 67 days in SHU following the Tier III hearing held on the misbehavior report which arose out of the October 1, 2001 incident at Gowanda. According to the pages annexed to the claim, Claimant was kept in SHU at Gowanda as a result of the Tier III determination until November 15, 2001 when he was transferred to Attica and placed in keeplock status. He was released from keeplock status at Attica on December 11, 2001 (see Defendant’s Exhibit D). Because a cause of action for wrongful confinement accrues when the confinement ends (see Collins v McMillan, 102 AD2d 860 [1984]; Ramirez v State of New York, 171 Misc 2d 677 [1997]), Claimant had to commence his cause of action for wrongful confinement within 90 days of December 11, 2001. Unfortunately, his claim was neither filed nor served within 90 days of the accrual of this cause of action. As a result, any wrongful confinement cause of action alleged in the claim must be dismissed unless it was asserted in the notice of intention served on January 17, 2002, which was within 90 days of accrual of such a cause of action.

Court of Claims Act § 11 (b) requires a claim to “state the time when and place where such claim arose, the nature of same, and the items of damages or injuries claimed to have been sustained and the total sum claimed.” While absolute exactness is not required, there must be substantial compliance with § 11 (b) to enable the State to promptly investigate the claim and to ascertain its liability (Lepkowski v State of New York, supra; Heisler v State of New York, 78 AD2d 767 [1980]). A notice of intention, however, is not a pleading and serves a different purpose. It, therefore, does not have to meet the same “stringent requirements” imposed on a claim (see Epps v State of New York, 199 AD2d 914 [1993]). As long as the general nature of the claim is sufficiently set forth in the notice of intention to enable the State to investigate, it is not necessary for the notice of intention to state a cause of action ( id., at 914; Klos v State of New York, 19 AD3d 1173 [2005]). Here, Claimant has included in the notice of intention, the date of the incident at Gowanda which led to the misbehavior report and the Tier III hearing. While inarticulately stated, Claimant further alleges in his notice of intention that he did not receive adequate assistance during this hearing, that the hearing was not conducted in a timely manner, and that he was not allowed to call certain witnesses to testify. These allegations provided sufficient information to allow the State to investigate. Had it done so, it would have discovered that Claimant was sentenced to SHU as a result of the determinations reached at the conclusion of this hearing and should have inferred that Claimant would be alleging a cause of action based on wrongful confinement. Defendant’s motion insofar as it can be read as requesting that any cause of action for wrongful confinement be dismissed as untimely is denied.

Finally, in his February 8, 2007 affidavit, Claimant alleges that his First, Fourth and Eighth Amendment rights were violated. Assuming that Claimant had even raised a constitutional tort cause of action in either the notice of intention or claim, the Court does not have subject matter jurisdiction over such a cause of action. Claims based on alleged violations of rights guaranteed by the United States Constitution are governed by 42 USC § 1983. Such a cause of action may not be maintained in the Court of Claims, however, because the State of New York is not a “person” ammenable to suit under this statute (see Will v Michigan Dept. of State Police, 491 US 58 [1989]; Brown v State of New York, 89 NY2d 172 [1996]). A constitutional tort cause of action may occasionally arise under the New York State Constitution when, among other requirements, the Claimant has no common-law or statutory remedy (Waxter v State of New York, 33 AD3d 1180 [2006]). Here, if Claimant felt that his New York State Constitutional rights had been violated during the Tier III hearing, he could have filed a grievance, followed by an Article 78 proceeding if dissatisfied with the results of the grievance, and/or a wrongful confinement claim. Because Claimant had other remedies, a constitutional tort remedy is “neither necessary to effectuate the purposes of the state constitutional protections ... nor appropriate to ensure full recognition” of claimant’s rights, and will not be entertained (Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]).

Motion for an order compelling discovery and/or for a preclusion order.

Since this motion was filed, Defendant has received Claimant’s bill of particulars and other documents. Defendant is understandably confused by Claimant’s responses and has asked Claimant to clarify certain responses and to provide responses to Defendant’s demand pursuant to CPLR 3101 (d) and to Defendant’s demand for collateral sources, which remain outstanding. The Court will order Claimant to respond to these two remaining discovery demands within sixty (60) days of receipt of a copy of this decision and order, together with an additional copy of Defendant’s discovery demands. Because Claimant has attempted to respond to at least some of Defendant’s discovery demands, Defendant’s motion for a preclusion order is denied, without prejudice, to file a subsequent motion in the event Claimant fails to clarify his current responses and/or fails to respond to Defendant’s outstanding demands.

Accordingly, it is hereby

ORDERED, that Defendant’s motion to dismiss is granted, in part, dismissing causes of action based on allegations of a wrongful misbehavior report, on allegations of medical negligence/malpractice, or on allegations of a constitutional tort, but is denied with respect to Claimant’s cause of action for wrongful confinement; and it is further

ORDERED, that Defendant’s motion to compel responses to its demand pursuant to CPLR 3101 (d) and to its demand for collateral sources is granted and Claimant is directed to provide responses to these two demands within sixty (60) days of receipt of a copy of this decision and order, together with a copy of the original demands; and it is further

ORDERED, that Defendant’s motion for a preclusion order is denied, without prejudice.



April 3, 2007
Buffalo, New York

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




[2]. This and other unreported Court of Claims decisions may be found on the Court’s web site at www.nyscourtofclaims.courts.state.ny.us.