New York State Court of Claims

New York State Court of Claims

ZAIRE v. THE STATE OF NEW YORK, #2007-040-008, Claim No. 107022


Prisoner – Constitutional Tort – Untimely Served and Filed – Dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
David Zaire, Pro Se
Defendant’s attorney:
Attorney General of the State of New YorkBy: Michael T. Krenrich, Esq., AAG
Third-party defendant’s attorney:

Signature date:
February 21, 2007

Official citation:

Appellate results:

See also (multicaptioned case)

Pro se inmate, David Zaire, alleges that he was wrongfully deprived of participation in the Department of Correctional Services’ (hereinafter DOCS) Family Reunion Program in violation of his rights pursuant to New York State Constitution, Article 1, § 9 and the First and Fourteenth Amendments to the United States Constitution. A trial of the Claim was held by video conference on January 17, 2007, with the parties at Clinton Correctional Facility (hereinafter Clinton) in Dannemora and the Judge at the Court of Claims in Albany.
The Defendant, by motion returnable on the trial date, moved to dismiss the Claim on the ground that it was not timely served upon the Defendant within ninety (90) days of accrual as required by Court of Claims Act §§ 10 (3) and 11 (Motion No. M-72698). For the reasons set forth below, Defendant’s motion is granted and the Claim is dismissed.
The Claim alleges that on June 25, 2002, following a jury trial, the United States District Court for the Northern District of New York rendered a judgment in favor of Claimant, declaring that DOCS had retaliated against Claimant for exercising his First Amendment rights under the Federal Constitution by discontinuing his Family Reunion Program visits. The jury awarded Mr. Zaire nominal damages in the amount of $1.00, but declined to award him any punitive damages (see Zaire v Muller, et al., 98-CV-1838, Johnstone, USDJ; Ex. 2; Ex. A). The Federal Court action was brought pursuant to 42 U.S.C. § 1983 (see Ex. C). The Claim further asserts that, as a result of the decision in Thompson v Carter (284 F3d 411), the jury in Zaire v Muller, et al., (supra) was precluded from awarding Claimant monetary damages for the mental and emotional suffering he has endured as a result of the State’s actions. Therefore, Claimant brought this action for damages for violation of his State and Federal constitutional rights, for his mental and emotional suffering and for retaliatory deprivation of his participation in DOCS’ Family Reunion Program.
A Notice of Intention to File a Claim was served upon the Attorney General on September 25, 2002 ( see Ex. A attached to motion) and a Claim was served on December 2, 2002 (see Ex. B attached to motion). The Claim was filed with the Clerk of the Court on December 2, 2002.
In its motion, Defendant asserts that the Notice of Intention was served on the 92nd day after accrual of the Claim and, thus, was untimely pursuant to Court of Claims Act §§ 10(3) & 11. The failure to timely serve a notice of intention does not extend a claimant’s time to serve and file a claim (see Court of Claims Act §10[3]). The failure to timely serve the Attorney General gives rise to a defect in jurisdiction, which, if not raised with particularity, is subject to the waiver provisions of Court of Claims Act § 11(c).
Claimant did not submit any written opposition to the State's motion, but was given an opportunity to respond orally at the trial of the Claim. Mr. Zaire contended that the Claim, which asserts a constitutional tort cause of action, was timely served and filed because the Notice of Intention was served within six (6) months of accrual as provided by Court of Claims Act § 10(4). Claimant’s contention is incorrect. The New York State Court of Appeals held, in Lyles v State of New York (3 NY3d 396), that the jurisdictional time limits of either Court of Claims Act § 10(3) or § 10(3-b) are applicable to constitutional tort claims (see Keskin v State of New York, Claim No. 111383, Motion No. M-70835, dated November 22, 2006, Patti, J. [UID No. 2006-013-077]; see also Carter v New York State Department of Taxation and Finance, Claim No. 112242, Motion No. M-71952, dated August 28, 2006, Milano, J. [UID No. 2006-041-002]). Thus, the Court concludes that Claimant’s constitutional tort claim is not governed by the provisions of Court of Claims Act § 10(4). Rather, it is governed by the provisions of Court of Claims Act § 10(3) or § 10(3-b).
Court of Claims Act § 10 is more than a statute of limitations; it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (DeMarco v State of New York, 43 AD2d 786, affd 37 NY2d 735; Antoine v State of New York, 103 Misc 2d 664). Failure to timely comply with the statutory filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Buckles v State of New York, 221 NY 418; Ivy v State of New York, 27 AD3d 1190; Byrne v State of New York, 104 AD2d 782). This defect was timely and properly raised with particularity in the State’s Answer (dated January 6, 2003) as its first affirmative defense, in accordance with Court of Claims Act § 11( c ).
Based upon the foregoing, Defendant’s motion is granted and the Claim is dismissed. Neither a notice of intention nor a claim was timely filed and served upon the Attorney General, nor was a claim timely filed with the Clerk of the Court within ninety (90) days of accrual, all as required by Court of Claims Act §§ 10(3), 10(3-b) and 11.
The Court notes that even if the constitutional tort claim had been timely filed, it would be dismissed. In Brown v State of New York (89 NY2d 172), the Court of Appeals recognized that, when certain requirements are met, a violation of the New York State Constitution may create a private cause of action (see Waxter v State of New York, 33 AD3d 1180). In Martinez v City of Schenectady (97 NY2d 78), however, the Court of Appeals made it clear that Brown establishes a narrow remedy, applicable in cases where no other remedy is feasible to provide citizens with an avenue of redress when their private interests have been harmed by constitutional violations (Martinez v City of Schenectady, supra at 83; Waxter v State of New York, supra). Where an adequate remedy could be provided, however, “a constitutional tort claim ... is [not] necessary to effectuate the purposes of the State constitutional protections ... [invoked] nor appropriate to ensure full realization of [claimants’] rights” (Martinez v City of Schenectady, supra at 83; see Bullard v State of New York, 307 AD2d 676, 679). In the present case, recognition of the State constitutional cause of action is neither necessary nor appropriate to ensure the full realization of Claimant’s rights, because the alleged wrongs could have been redressed by an alternative remedy, namely, either in a CPLR Article 78 Proceeding, or by appealing the Federal Court decision (see Martinez v City of Schenectady, supra; Watson v State of New York, 35 AD3d 985; Bullard v State of New York, supra). Claimant asserted at trial that he disagrees with the Federal Court determination not to award him punitive damages and asked this Court to consider that question. This Court is not an appellate court and does not sit in review of Federal District Court determinations. Mr. Zaire also stated that his only purpose in pursuing this matter initially was to be transferred to a correctional facility closer to his wife. Eventually, Claimant concluded that he had “no other alternative but to resort to something to make Defendant cease and desist from vindictive retaliation”
against him. “It was never about litigating ... it was about me wanting to be near a wife who could die tomorrow.” To the extent that remains the ultimate remedy Mr. Zaire seeks, it is a form of equitable relief. This Court does not have the power to grant such relief; this Court can only grant monetary damages.
In addition, to the extent that any of Claimant’s allegations assert a deprivation under the Federal Constitution, it is long settled that no action may be maintained in this Court against the State for alleged Federal constitutional violations (Matter of Thomas v New York Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723, affd 56 NY2d 656; Welch v State of New York, 286 AD2d 496; Davis v State of New York,124 AD2d 420). To the extent that the Claimant may assert Federal constitutional violations, his remedy lies elsewhere and any such cause of action is dismissed.
Therefore, in accordance with the foregoing, the Claim is hereby dismissed.
The Clerk is directed to enter judgment accordingly.

February 21, 2007
Albany, New York

Judge of the Court of Claims

[1].All quotations are taken from the audiotape recording of the trial.