New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2008-037-020, Claim No. NONE, Motion No. M-74639


Synopsis



Case Information

UID:
2008-037-020
Claimant(s):
DARRELL R. GREEN
Claimant short name:
GREEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-74639
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Darrell R. Green, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: William D. LonerganAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 13, 2008
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to Movant’s motion for permission to late file a claim:
1. Motion[1] of pro se Movant, Darrell R. Green, dated March 2, 2008, with annexed

Exhibits;

2. Opposing affidavit of Assistant Attorney General William D. Lonergan sworn to

March 24, 2008;

3. Unsworn reply statement [2] of pro se Movant, Darrell R. Green, dated March 27,

2008.

Movant, Darrell R. Green, brings this motion for leave to late file a claim against the State of New York for emotional and psychological injuries he allegedly sustained in October of 2006 while incarcerated at Lakeview Shock Incarceration Correctional Facility when, as a practicing Muslim, he was denied Ramadan meals.

Pursuant to § 10 (3) of the Court of Claims Act, unintentional tort claims against the State of New York must be filed and served 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 shall be filed and served within two years of accrual of the claim. Here, the conduct complained of started on October 2, 2006 and ended on October 10, 2006, when, according to the notice of intention to file a claim attached to Movant’s motion papers, Movant once again started to receive Ramadan meals. The claim, thus, accrued no later than October 10, 2006. Neither a claim nor a notice of intention to file a claim, however, was served and/or filed within 90 days of that accrual date. According to Movant’s papers, he attempted to serve a notice of intention on February 5, 2007, more than 90 days after accrual of the claim. Moreover, according to the affidavit of service, Movant attempted service of the notice of intention by certified mail only. A notice of intention, like a claim, must be served on the Attorney General personally or by certified mail, return receipt requested. Because the filing and service 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, 723 [1989]), and because Movant failed to serve his notice of intention by an authorized method of service, Movant is not entitled to the two-year extension of time to file a claim allowed by Court of Claims Act § 10 (3). Movant now brings this motion for leave to late file a claim pursuant to § 10 (6) of the Court of Claims Act.

Court of Claims Act § 10 (6) grants the Court discretion to permit the late filing of a claim upon consideration of many factors including: 1) whether the delay in filing and serving the claim was excusable; 2) whether the State had notice of the essential facts constituting the claim; 3) whether the State had an opportunity to investigate the circumstances underlying the claim; 4) whether the claim appears to be meritorious; 5) whether substantial prejudice to the State resulted from the failure to timely serve a claim upon the Attorney General; and 6) whether any other remedy is available. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court is afforded considerable discretion in determining whether to permit the late filing of a claim (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [1994]).

The first factor to be considered by the Court is whether the delay in filing and serving the claim was excusable. Movant alleges that the delay in filing and serving was excusable because the State had notice of his allegations in October of 2006 when he filed his grievance. This allegation does not address the delay in filing and, thus, this factor weighs against granting Movant’s motion.

At best, this allegation addresses the three factors of notice, opportunity to investigate and prejudice which are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [1998]). Defendant argues that Movant’s grievance does not make reference to any of the statutory or constitutional violations Movant attempts to raise in the proposed claim. Moreover, the notice of intention merely refers to a claim to be brought under the Constitution of the United States. The grievance and the notice of intention do, however, give the basic facts and enough information for the State to investigate. Because there does not appear to be any prejudice to the State, these three factors of notice, opportunity to investigate and lack of prejudice all favor Movant’s motion.

Movant further argues that he has no other remedy for the injury and suffering he has sustained. Contrary to this assertion, Movant could have commenced an action in Federal and/or State Supreme Court and could have commenced an Article 78 proceeding if dissatisfied with the results of the grievance process.[3] Thus, this factor weighs against Movant’s motion.

The next and often considered the most decisive factor is merit as it would be futile to allow a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]). Movant must demonstrate that the proposed claim is not “patently groundless, frivolous, or legally defective” and that there is reasonable cause to believe that a valid cause of action exists (id. at 11). In the proposed claim, attached to his motion papers, Movant has generally alleged causes of action under the Constitutions of the United States and the State of New York, under Correction Law §§ 610 and 137 (5), and under the Religious Freedom Restoration Act of 1993 (RFRA) and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). Each of these potential causes of action will be addressed seriatim.
Constitution of the United States
Movant alleges in his proposed claim that his First Amendment rights were violated. The Court of Claims is a court of limited jurisdiction. It 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 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]). Because a cause of action brought under the United States Constitution may not be maintained in the Court of Claims, it would be futile to allow the late filing of a claim which would be subject to immediate dismissal.
Constitution of the State of New York
A constitutional tort cause of action may occasionally arise under the New York State Constitution when, among other requirements, the Movant has no common-law or statutory remedy (Waxter v State of New York, 33 AD3d 1180 [2006]). Here, if Movant felt that his New York State Constitutional rights had been violated, he could have filed a grievance, followed by an Article 78 proceeding if dissatisfied with the results of the grievance. Because Movant had other remedies, a constitutional tort remedy is “neither necessary to effectuate the purposes of the State constitutional protections . . . nor appropriate to ensure full realization of [Movant’s] rights,” and will not be entertained (Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]; Ohnmacht v State of New York, 14 Misc 3d 1231 [A] [2007]).
New York State Correction Law § 610
Correction Law § 610 (1) provides that New York State inmates are “entitled to the free exercise and enjoyment of religious profession and worship, without discrimination or preference.” This Court lacks subject matter jurisdiction as New York State Supreme Court has been specifically designated as the venue for claims seeking to enforce the provisions of this statute (see Correction Law § 610 (3); Gill v State of New York, 13 Misc 3d 1223 [A] [2006]). Thus, it would be futile to permit Movant to file a late claim alleging a cause of action under § 610 of the Correction Law which would be immediately dismissed.
Religious Freedom Restoration Act (RFRA)
The Religious Freedom Restoration Act of 1993 (RFRA) generally provides that the government may not substantially burden a person’s right to exercise his religion (see 42 USC § 2000 bb-1 [a]). In City of Boerne v Flores (521 US 507 [1997]), however, the United States Supreme Court held that the application of the RFRA to the States was unconstitutional because the Act as applied to States exceeded Congress’ remedial powers under the Fourteenth Amendment (id., at 532-536). Because Movant does not have a valid claim against the State of New York under the RFRA, it would be futile to permit Movant leave to late file such a claim.
Religious Land Use and Institutionalized Persons Act (RLUIPA)
The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . .” (42 USC 2000 cc-1 [a]). The obvious venue for a claim brought under a federal statute is Federal District Court. There is a presumption, however, that State Courts have concurrent jurisdiction. This presumption can be rebutted by “(a) an explicit statutory directive (b) unmistakable implication from legislative history or (c) clear incompatibility between State court jurisdiction and Federal interests (citations omitted)” (Simpson Elec. Corp. v Leucadia, Inc., 72 NY2d 450, 455 [1988]). At least one Court has interpreted the language of this Federal statute and determined that while New York State Supreme Court may have concurrent jurisdiction with Federal Courts to hear actions brought under RLUIPA, the Court of Claims does not have jurisdiction (Gill v State of New York, supra). In reaching this conclusion, the Honorable Judge Ren
é
e Forgensi Minarik relied upon the limited jurisdiction of the Court of Claims as enumerated in § 9 of the Court of Claims Act and concluded that a claim based on an allegation that the State violated an inmate’s right to religious freedom did not fall within the purview of the limited types of actions that can be brought in this Court.
New York State Correction Law § 137 (5)
Finally, Movant generally alleges in his proposed claim that the State violated § 137 (5) of the Correction Law which states in pertinent part that “[n]o inmate in the care or custody of the department shall be subjected to degrading treatment . . . .” The only “degrading treatment” mentioned in the proposed claim is the lack of Ramadan meals. This allegation could have been directly addressed by an Article 78 review of his grievance process, by a constitutional tort claim, or by a claim under § 610 of the Correction Law or under RLUIPA, albeit in State Supreme or Federal District Court. Because there are other more appropriate remedies, this Court will not reward Movant in damages for neglecting administrative and judicial remedies available to him (see Towles v State of New York, Ct Cl, November 30, 2000, Patti, J., Claim No. 95807, UID # 2000-013-515)[4], and, thus, finds no basis for transforming an alleged violation of Correction Law § 137 (5) into a separate cause of action for monetary damages (see generally Bennet v State of New York, 11 Misc 3d 1088 [A] [2006]).

Consequently, the Court finds that the proposed claim lacks the appearance of merit. This factor, together with the lack of an excuse for the delay in filing a claim and the availability of alternative remedies, all weigh against the granting of Movant’s motion. Accordingly, it is

ORDERED, that Movant’s motion M-74639 for leave to late file a claim is denied.


May 13, 2008
Buffalo, New York

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




[1]. Pursuant to Rule 2214 of the CPLR, a motion is to be accompanied by an affidavit. Movant’s unsworn statement does not qualify as an affidavit and may be disregarded. The Court has, however, read and considered Movant’s statement.
[2]. See footnote #1.
[3]. These alternative remedies will be addressed infra.
[4]. This and other unreported Court of Claims decisions may be found on the Court’s website at www.nyscourtofclaims.state.ny.us.