New York State Court of Claims

New York State Court of Claims

PRZESIEK v. THE STATE OF NEW YORK, #2008-042-518, Claim No. 115201, Motion Nos. M-75013, CM-75014


Synopsis


This motion was brought on by defendant’s pre-answer motion to dismiss the claim for lack of subject matter jurisdiction and for failure to state a cause of action against the defendant. Claimant cross-moved for an order dismissing defendant’s motion. The defendant’s motion to dismiss the claim is granted and claimant’s cross-motion is denied.

Case Information

UID:
2008-042-518
Claimant(s):
RYAN R. PRZESIEK
Claimant short name:
PRZESIEK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115201
Motion number(s):
M-75013
Cross-motion number(s):
CM-75014
Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
RYAN R. PRZESIEK, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 9, 2008
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This matter comes before the court on defendant’s pre-answer motion to dismiss the claim for lack of subject matter jurisdiction and for failure to state a cause of action against the defendant. Claimant has cross-moved for an order dismissing/denying defendant’s motion. Inasmuch as claimant’s “cross-motion” is in fact, simply opposition to defendant’s motion, it will be treated as opposition, rather than a cross-motion. The court has considered the following papers:
  1. Pre-Answer Notice of Motion to Dismiss Claim, filed May 16, 2008
  2. Affirmation of Joel L. Marmelstein, Esq., Assistant Attorney General, dated May 16, 2008
  3. Exhibit A, annexed to the moving papers
  4. Notice of Cross-Motion, filed May 29, 2008
  5. Affidavit of Ryan R. Przesiek, claimant pro se, sworn to May 21, 2008
  6. Opposition affirmation of Joel L. Marmelstein, Esq., Assistant Attorney General, dated June 20, 2008
_________________________________________


At all relevant times, claimant has been a resident of the Central New York Psychiatric Center, allegedly confined there under the provisions of Article 10 of the Mental Hygiene Law. The underlying claim asserts that the defendant has failed to provide a law library to claimant, has restricted his purchase of legal materials, has refused to provide supplies and carbon paper to claimant and has imposed what claimant considers to be an excessive photocopying charge of $.50 per page for copies requested by claimant. The claim alleges that these deprivations effectively resulted in a denial of claimant’s federal and state constitutional rights along with his “civil and patient rights”, and that as a result, claimant has been damaged in the amount of five million dollars.

It is the position of the defendant that regardless of how the claim is worded, the entire claim is premised upon an alleged denial of access to the courts by the denial of access to materials. Defendant contends that this court lacks subject matter jurisdiction for the claim, insofar as it is based upon alleged violations of federal constitutional rights. Furthermore, defendant contends that claimant has not set forth allegations sufficient to maintain a claim for alleged violations of his rights pursuant to the New York constitution. And as defendant has correctly noted, claimant has failed to articulate any basis for the alleged violation of “civil and patient rights” other than the aforementioned denial of access.

Claimant contends that this court has subject matter jurisdiction. Claimant also contends that the Notice of Motion is defective because the court clerk, rather than the attorney general, set the return time and place of hearing. This contention ignores the fact that the clerk of the court assigns the judge and sets the return date and that claimant had ample notice of both. Claimant also contends that the CPLR does not allow a pre-answer, and that therefore defendant’s motion is improper. However, defendant has not served a “pre-answer”, it has served a “pre-answer notice of motion to dismiss claim”; such a motion is permissible under CPLR 3211 (e).

Despite claimant’s blunderbuss charges against the defendant, ranging from violations of federal and state constitutional rights to violations of “civil and patient rights”, all of the claims arise out of the alleged denial of access to a law library, whether by denial of a right to purchase certain books, denial of the use of carbon paper, as a type of contraband, or alleged excessive charges for photocopies at $.50 per page.

While claimant is allegedly confined at Central New York Psychiatric Center pursuant to Mental Hygiene Law Article 10 (presumably as a person who has passed his maximum release date), he is still “entitled to the [rights provided to inmates by the] ‘[c]onditions of confinement’ set forth in 7 NYCRR 330.4" (Matter of the State of New York v Cuevas, 49 AD3d 1324, 1326 [4th Dept 2008], including law library services (7 NYCRR 330.4 [e]).

However, violations of the United States Constitution or federal civil rights are properly raised in federal court, not in the Court of Claims (Wilson v State of New York, UID No. 2002-005-544, Claim No. NONE, Motion No. M-65456, October 21, 2002, Corbett, J., citing Will v Michigan Dept. of State Police, 491 US 58).

In Gagne v State of New York, UID No. 2001-013-029, Claim No. 98686, Motion No. M-63259, November 30, 2001, Judge Patti noted that:

[a]s the Fourth Department has stated, prison and jail inmates do not have an abstract, free-standing right to a law library or legal assistance (People v Cabrera, 259 AD2d 1007 [quoting Lewis v Casey, 518 US 343]); making legal materials available inside prisons and jails is simply a “reasonable alternative” to assure meaningful access to the courts” (id., quoting Bounds v Smith, 430 US 817). While an inmate’s total inability to access the law library, in order to remedy his ignorance of legal rules and requirements, may be a factor entitled to consideration in his favor if he has to move for permission to late file in this Court (see, Plate v State of New York, 92 Misc 2d 1033), research has disclosed no case in which a cause of action for money damages has been maintained for such deprivation.


Likewise, in Jacobs v State of New York, UID No. 2004-031-054, Claim No. 107999, Motion No. M-67172, May 20, 2004, Minarik, J., the claimant alleged he was given used carbon paper and at least once was ordered out of the prison law library. Nevertheless, the court held that “[t]his alleged wrong, however, is not something for which this court can compensate Claimant” (Jacobs v State of New York, UID No. 2004-031-054, Claim No. 107999, Motion No. M-67172, May 20, 2004, Minarik, J., citing with favor, Gagne v State of New York, UID No. 2001-013-029, Claim No. 98686, Motion No. M-63259, November 30, 2001, Patti, J.; Leach v Dufrain, 103 F Supp 2d 542).

Turning to claimant’s allegations that this denial of access violated the New York State Constitution and that for such a violation he is entitled to money damages, the court is mindful that not every violation of a State constitutional provision will have a remedy in the Court of Claims (Brown v State of New York, 89 NY2d 172 [1996]). In Johnson v State of New York, UID No. 2004-019-508, Claim No. 106452, Motion Nos. M-67766, CM-67808, January 20, 2004, Lebous, J., the claimant inmate alleged State constitutional violations by defendant for refusal to type a legal brief, for refusal for an advance for legal mail, and for retaliatory conduct relating to the delivery of a package. The court found that:

[t]o the extent that each of these causes of action allege violations of the State Constitution, the court finds that this claim fails to state a cause of action on this basis as well. Although the Court of Appeals has recognized a cause of action for constitutional tort (Brown v State of New York, 89 NY2d 172), it is well-settled that a constitutional tort remedy will not be implied when adequate alternative remedies exist. (Augat v State of New York, 244 AD2d 835, 837, lv denied 91 NY2d 814; Remley v State of New York, 174 Misc 2d 523). Here, claimant could have pursued inmate grievances and if dissatisfied with the results of the grievance process, then he could commence an Article 78 proceeding. (Matter of Hakeem v Wong, 223 AD2d 765, lv denied 88 NY2d 802; 7 NYCRR 701.1 et seq.; see also, Moates v State of New York, Ct Cl, September 25, 2000, Fitzpatrick, J., Claim No. 99875, Motion Nos. M-61714 & M-61565 [UID No. 2000-018-044]). The fact that claimant may have been unsuccessful in pursuing these alternative remedies does not then create jurisdiction in this court. In sum, there is no need to imply a cause of action for a constitutional tort in this case.


(Johnson v State of New York, UID No. 2004-019-508, Claim No. 106452, Motion Nos. M-67766, CM-67808, January 20, 2004, Lebous, J.). This court is in accord with that finding.

In view of the foregoing, the state’s motion to dismiss the claim is granted, the claim is dismissed, and the claimant’s cross-motion is denied.


September 9, 2008
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims