State's pre-answer motion to dismiss pursuant to CPLR 3211(a)(7) granted. Claim alleges violations of Federal and NYS Constitutions.
|Claimant(s):||DANIEL SHELTON d/b/a SHELTON BROTHERS|
|Claimant short name:||SHELTON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||Caption amended to reflect the State of New York as the proper defendant.|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||BOIES, SCHILLER & FLEXNER LLP
By: George F. Carpinello, Esq.
|Defendant's attorney:||ANDREW M. CUOMO
Attorney General of the State of New York
By: Michael C. Rizzo, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||June 6, 2008|
|Official citation:||878 NYS2d 212|
|Appellate results:||affd 61 AD3d 1145|
|See also (multicaptioned case)|
For the reasons set forth below, the State's pre-answer motion to dismiss the Claim pursuant to CPLR 3211(a)(7) because the Claim fails to state a cause of action over which the Court has jurisdiction is granted and the Claim is dismissed.
The Claim, which was filed with the Clerk of the Court on December 29, 2006, states that "[t]he nature of the claims are constitutional torts" (Claim, ¶ 3). It asserts that the action arises from the refusal of the New York State Liquor Authority Commissioners ("SLA") to license Claimant's sale of six labels of beer in New York State and from the "levying of unconstitutional fees by New York State against Claimant" (Claim, ¶ 4).
The Claim sets forth eight separate causes of action. The first, second, third and seventh causes of action assert violations of the United States Constitution (the First and Fourteenth Amendments and the Commerce Clause). The fourth, fifth, sixth and eighth causes of action assert violations of the New York State Constitution (Article 1, §§ 8 and 11).
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 give rise to a private cause of action" (Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; see Wagoner v State of New York, Claim No. 109368, dated April 2, 2008, Mignano, J. [UID No. 2008-029-014]). 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, 97 NY2d 78, supra at 83; Waxter v State of New York, 33 AD3d 1180, supra at 1181). 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" (Bullard v State of New York, 307 AD2d 676, 679 [3d Dept 2003], quoting Martinez v City of Schenectady, 97 NY2d 78, supra at 83).
In the present Claim, recognition of the State constitutional causes of action are neither necessary nor appropriate to ensure the full realization of Claimant's rights, because the alleged wrongs can be redressed by an alternative remedy, namely, Claimant's pending action in Supreme Court, Albany County (see Martinez v City of Schenectady, 97 NY2d 78, supra at 83; Bullard v State of New York, 307 AD2d 676, supra at 679). The Court notes that Claimant's Amended Verified Complaint in his companion action in Supreme Court (see Ex. A attached to Affirmation of George F. Carpinello ["Carpinello Affirmation"]) includes virtually identical causes of action (see causes of action 1-6, 9-10) as those asserted in the Claim (cf. causes of action 1-8). Although Supreme Court dismissed the other causes of action, it did not dismiss numbers 9-10 (cf. Nos.7-8 in the Claim) (see Ex. B attached to Carpinello Affirmation, Daniel Shelton d/b/a Shelton Brothers v. N.Y. State Liquor Auth. et al., Index No. 7893-06, RJI No. 01-06-087601 [JCE], Decision & Order [Oct. 26, 2007] ["Supreme Court Decision & Order"]).
Thus, the Supreme Court action remains a viable alternative remedy with respect to the seventh and eighth causes of action in the Claim, and recognition of those constitutional causes of action in this Court are neither necessary nor appropriate to ensure full realization of Claimant's rights. Moreover, Claimant's counsel indicates that the determinations made by Supreme Court, "are the subject of the pending appeal in the Appellate Division" (Claimant's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, pp. 8, n. 3, 11, n. 13 ["Carpinello Memorandum"]). Where "there [are] avenues of relief available through alternative proceedings--the most obvious of which [being] appeal from any of the other courts' rulings adverse to claimant, or through the use of an Article 78 proceeding, if warranted by the facts... there is no factual basis stated in the claim for relief in the Court of Claims on New York State constitutional grounds" (Zito v State of New York , 15 Misc 3d 1116 (A) [Ct Cl 2007]; see Griffen v State of New York, Claim No. None, Motion No. M-72280, dated December 4, 2006, Scuccimarra, J. [UID No. 2006-030-585]). Thus, it, likewise, is neither necessary nor appropriate to entertain in the Court of Claims those causes of action that were dismissed by Supreme Court. Finally, while Claimant may be dissatisfied with the results in Supreme Court, that fact alone does not create jurisdiction over the Claim in this Court (see Stevenson v State of New York, Claim No. 108660, dated March 31, 2006, Minarik, J. [UID No. 2006-031-506]).
Insofar as Claimant's second and fifth causes of action can be read to be challenging the constitutionality of SLA regulations and the seventh cause of action can be read to be challenging the constitutionality of specific sections of the State Alcoholic Beverage Control Law, the Court of Claims lacks jurisdiction over challenges to the constitutionality of State statutes (see Cass v State of New York, 58 NY2d 460, 463 , rearg denied 60 NY2d 586 ). Such causes of action should be brought in Supreme Court, even if they also include claims for money damages against the State of New York (Cass v State of New York, supra; Matter of Markham v Comstock, 272 AD2d 971, 972 [4th Dept 2000], appeal dismissed 95 NY2d 886 , cert denied 531 US 1079 ; Shields v Katz, 143 AD2d 743, 744-745 [2d Dept 1988]; Civil Practice Law and Rules § 3001).
Turning to Claimant's causes of action that assert a deprivation of rights under the Federal Constitution, no action may be maintained in this Court against the State for alleged Federal constitutional violations (Lyles v State of New York, 194 Misc 2d 32, 35-36 [Ct Cl 2002], affd 2 AD3d 694, 696 [2d Dept 2003], affd on other grounds 3 NY 3d 396 ; Matter of Thomas v New York Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723 [3d Dept 1981], affd 56 NY2d 656 ; Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]; Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986]; Zito v State of New York, 15 Misc 3d 1116[A], supra; Suarez v State of New York, 14 Misc 3d 1230 [A] [Ct Cl 2006]; Torres v State of New York, 13 Misc 3d 574, 575 [Ct Cl 2006]). To the extent that Claimant asserts Federal constitutional violations, his remedy lies elsewhere and such causes of action are dismissed.
Therefore, in accordance with the foregoing, the State's motion is granted and the Claim is hereby dismissed.
June 6, 2008
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on the State's motion to dismiss:
Notice of Motion, Affidavit in Support &
Memorandum of Law 1
Affirmation of George F. Carpinello, Exhibits
Attached and Memorandum of Law 2
State's Reply Memorandum of Law 3
Claimant's Sur-Reply Memorandum of Law 4
Filed Papers: Claim