New York State Court of Claims

New York State Court of Claims

MORRISON v. STATE OF NEW YORK, #2009-037-004, Claim Nos. 114175, 114176, 114288, 114289, 114290, 115259, Motion Nos. M-75723, M-75724, M-75784, CM-75783


Synopsis


Claimant’s summary judgment motions are denied for lack of evidentiary facts and Defendant’s motion and cross-motion to dismiss the claims for lack of jurisdiction due to the failure of Claimant to serve his claims personally or by certified mail, return receipt requested, are granted.

Case Information

UID:
2009-037-004
Claimant(s):
PATRICK MORRISON, 07 B 1911
Claimant short name:
MORRISON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114175, 114176, 114288, 114289, 114290, 115259
Motion number(s):
M-75723, M-75724, M-75784
Cross-motion number(s):
CM-75783
Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Patrick Morrison, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Thomas G. RamsayAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 16, 2009
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Pro se inmate Patrick Morrison brings two separate motion nos. M-75723 and M-75724 for summary judgment with respect to claim nos. 114288, 114289, 114290 and 115259. Defendant brings cross-motion no. CM-75783 to dismiss claim nos. 114288, 114289, 114290 and 115259, and motion no. M-75784 to dismiss claim nos. 114175 and 114176. The following were read and considered with respect to the motions and cross-motion before the Court:
  1. Claimant’s notice of motion no. M-75723 for summary judgment and unsworn
statement with respect to claim nos. 114288, 114289, 114290 and 115259 dated October 10, 2008;[1]

  1. Claimant’s notice of motion no. M-75724 for summary judgment with respect to
claim nos. 114288, 114289, 114290 and 115259 dated October 10, 2008;[2]

  1. Defendant’s notice of cross-motion no. CM-75783 to dismiss claim nos. 114288,
114289, 114290 and 115259 and accompanying affirmation of Assistant Attorney General Thomas G. Ramsay dated October 30, 2008 in support of cross-motion no. CM-75783 and in opposition to Claimant’s motion nos. M-75723 and M-75724, with annexed Exhibits A-H;

  1. Defendant’s notice of motion no. M-75784 to dismiss claim nos. 114175 and 114176
and accompanying affirmation of Assistant Attorney General Thomas G. Ramsay dated October 30, 2008, with annexed Exhibits A-D;

  1. Claimant’s October 29, 2008 letter with respect to motion nos. M-75723, M-75724
and cross-motion no. CM-75783;

  1. Claimant’s unsworn statement dated October 31, 2008 in opposition to Defendant’s
cross-motion no. CM-75783 with respect to claim no. 114288;

  1. Claimant’s unsworn statement dated October 31, 2008 in opposition to Defendant’s
cross-motion no. CM-75783 with respect to claim no. 114289;

  1. Claimant’s unsworn statement dated October 31, 2008 in opposition to Defendant’s
cross-motion no. CM-75783 with respect to claim no. 115259;

  1. Claimant’s unsworn statement dated November 3, 2008 in opposition to Defendant’s
cross-motion no. CM-75783 with respect to claim no. 114290;[3]

  1. Claimant’s unsworn statement dated November 3, 2008 in support of Claimant’s
motion nos. M-75723 and M-75724 and in opposition to Defendant’s cross-motion no. CM-75783 and motion no. M-75784;[4]

  1. Claimant’s November 7, 2008 letter with respect to motion nos. M-75723, M-75724
and cross-motion no. CM-75783;
  1. Reply affirmation of Assistant Attorney General Thomas G. Ramsay dated
December 8, 2008 with respect to motion nos. M-75723, M-75724 and cross-motion no. CM-75783;

  1. Claimant’s unsworn statement dated December 9, 2008 in support of Claimant’s
motion nos. M-75723 and M-75724 and in opposition to Defendant’s cross-motion no. CM-75783 and motion no. M-75784.[5]

Filed papers:

Claim no. 114175:
Claim filed August 31, 2007; Answer filed September 24, 2007.

Claim no. 114176:
Claim filed August 31, 2007; Answer filed September 24, 2007.
Claim no. 114288:
Claim filed September 27, 2007; Answer filed October 29, 2007.
Claim no. 114289:
Claim filed September 27, 2007; Answer filed October 15, 2007.
Claim no. 114290:
Claim filed September 27, 2007; Answer filed October 29, 2007.
Claim no. 115259:
Claim filed May 16, 2008; Answer filed June 2, 2008.

Claim nos. 114175, 114176, 114288, 114289, 114290 and 115259 all appear to arise out of a series of incidents which began on August 3, 2007 while the Claimant was incarcerated at Groveland Correctional Facility when he was allegedly assaulted by another inmate due to the failure of employees of the Department of Correctional Services (DOCS) to protect him (claim nos. 114176 and 114290), and then allegedly assaulted by correction officers when he asked for protection (claim no. 114175 and 114288). Claim no. 114289 appears to be the continuation of another claim, presumably either claim no. 114288 or 114290, as it was filed on the same date as these two other claims. Claim no. 115259 also appears to arise on August 3, 2007 when allegedly correction officers falsely accused Claimant of assaulting an officer and Claimant was subsequently wrongfully confined “to the box” for 9 months.

Claimant’s Motions for Summary Judgment:

Claimant now brings motion nos. M-75723 and M-75724 for summary judgment on his various claims. Motion no. M-75723 generally refers to claim nos. 114288, 114289, 114290 and 115259. A closer reading of motion no. M-75723, however, reveals that Claimant is seeking an order awarding him monetary damages because of the false allegations made against him by correction officers which ultimately led to his being wrongfully confined “to the box.” This motion thus relates solely to claim no. 115259. Claimant’s second motion for summary judgment M-75724 also generally refers to claim nos. 114288, 114289, 114290 and 115259. A closer reading of this motion reveals that Claimant is seeking an order awarding him two million dollars for the alleged assault against him by correction officers resulting in back injury, emotional distress and migraine headaches. This motion relates to claim no. 114288 and possibly to claim no. 114289 which is a continuation of an unspecified claim.

Pursuant to CPLR 3212 (b), a motion for summary judgment “shall be supported by affidavit, by a copy of the pleadings and by other available proof.” Claimant’s failure to include the pleadings with his motion papers requires a denial of his motions, regardless of the merits of either motion (Senor v State of New York, 23 AD3d 851 [2005]). Claimant’s motion papers were further deficient as they were not supported by affidavit or proof in admissible form. But even if Claimant had attached copies of the pleadings and had provided supporting affidavits, his motions would still have to be denied. Summary judgment is a drastic remedy which should not be utilized where there is any doubt as to the existence of a triable issue (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, supra). To establish a cause of action for unlawful confinement (motion no. M-75723), Claimant must show that Defendant intended to confine him, the Claimant was aware of the confinement, the Claimant did not consent to the confinement, and the confinement was not privileged (Broughton v State of New York, 37 NY2d 451 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). Claimant’s motion no. M-75723 is so bare and completely lacking of any argument, much less proof, with respect to the elements of an unlawful confinement cause of action that it fails to establish a prima facie entitlement to summary judgment as a matter of law (see Bayron v State of New York, Ct Cl, June 13, 2008, DeBow, J., claim no. 113686, motion no. M-74623, UID # 2008-038-599).[6] Moreover, Claimant fails to establish how the disciplinary proceeding which led to his unlawful confinement violated his due process rights or how Defendant acted outside the scope of its quasi-judicial privilege (Arteaga v State of New York, 72 NY2d 212 [1988]). Accordingly, Claimant’s motion no. M-75723 must be denied.

Claimant’s motion no. M-75724 must also be denied. Correction officers may use physical force to maintain order and discipline in correctional facilities (Johnson v State of New York, Ct Cl, September 26, 2005, Moriarty, J., claim no. 103185, UID # 2005-037-507). The mere fact that an altercation occurs between an inmate and correction officers does not alone establish liability (Patterson v State of New York, Ct Cl, April 23, 2002, Minarik, J., claim no. 105062, motion no. M-64629, UID # 2002-031-015). Claimant’s motion no. M-75724 is devoid of any evidentiary facts of the alleged assault or of the circumstances confronting the correction officers. Moreover, the credibility of the witnesses is often dispositive in assault cases (see Davis v State of New York, 203 AD2d 234 [1994]), and credibility issues cannot be resolved on a motion for summary judgment (Pettus v State of New York, Ct Cl, January 11, 2008, Schaewe, J., claim no. 112504, motion no. M-74216, UID # 2008-044-502). Accordingly, Claimant’s motion no. M-75724 must be denied.

Defendant’s Motion and Cross-Motion to dismiss:

Defendant moves by motion no. M-75784 to dismiss claim nos. 114175 and 114176 and by cross-motion no. CM-75783 to dismiss claim nos. 114288, 114289, 114290 and 115259 on the grounds that these claims are jurisdictionally defective as they were all served by regular mail. Court of Claims Act § 11 (a) requires that service upon the Attorney General be accomplished personally or by certified mail, return receipt requested (see Hodge v State of New York, 213 AD2d 766 [1995], appeal dismissed 87 NY2d 968 [1996]). 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 [1989]; Martinez v State of New York, 282 AD2d 580 [2001], lv denied 96 NY2d 720 [2001]). “[N]otice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court” (Feinstein v Bergner, 48 NY2d 234, 241 [1979]). The Court is without discretion to waive these requirements. Thus, the use of ordinary mail to serve the Attorney General is insufficient to confer jurisdiction (Bogel v State of New York, 175 AD2d 493 [1991]).

Defendant attaches to its motion no. M-75784 copies of claim nos. 114175 and 114176 (Exhibits A and C), and copies of Defendant’s answers to these claims (Exhibits B and D). Defendant also attaches a copy of the single envelope in which Claimant served Defendant with both claim no. 114175 and claim no. 114176 (see Exhibits A and C). On the outside of this envelope, which shows postage of 58 cents, is handwritten “Certified Mail!” and “Return Receipt Request Inside.” The amount of 58 cents is insufficient to mail an envelope by certified mail, return receipt requested, and the handwritten notations are simply not the type of indicia that would be placed on an envelope being properly mailed by certified mail, return receipt requested.

Similarly, Defendant attaches to its cross-motion no. CM-75783 copies of claim nos. 114288, 114289, 114290 and 115259 with copies of the envelopes in which these claims were served which show postage of 97 cents, 80 cents, 97 cents and 42 cents, respectively (see Exhibits A, C, E, and G). None of those amounts are sufficient to mail an envelope by certified mail, return receipt requested, and none of the envelopes contain the physical remnant of a green certified mail post card evidencing proper service (Hall v State of New York, Ct Cl, July 31, 2008, Scuccimarra, J., claim no. 111098, UID # 2008-030-019).

In his unsworn statement dated November 3, 2008, Claimant alleges that he was unable to serve his claims by certified mail, return receipt requested, because of the negative balance in his inmate account and because “the staff was ignoring me as well they nicked named [sic] me the state snitch.” In certain limited circumstances, upon proper proof, it has been held that the State may be equitably estopped from raising improper service as an affirmative defense if misfeasance or malfeasance on the part of correctional facility officials prevented the Claimant from being able to properly effectuate service (Rivera v State of New York, 5 AD3d 881 [2004]; Wattley v State of New York, 146 Misc 2d 968 [1990]). To establish estoppel, Claimant must demonstrate an omission or malfeasance on the part of the correctional facility staff to follow proper mailroom procedures (Saunders v State of New York, Ct Cl, July 17, 2007, Sise, P. J., claim no. 112459, motion no. M-72046, UID # 2007-028-508). Claimant has failed to even allege that he requested certified mail, provided the proper funds and was refused; nor did he provide a disbursement form or any other form evidencing an intent to utilize certified mail, return receipt requested, in order to serve any of his claims (Hall v State of New York, supra). Equitable estoppel is simply unavailable to Claimant.

Claimant also alleges in his November 3, 2008 unsworn statement that he is entitled to file his claims without notarization and verification. Claimant is apparently responding to the affirmative defenses raised in Defendant’s answers that the various claims before the Court do not comport with the verification requirements of § 11 (b) of the Court of Claims Act. It is suffice to note that Defendant has not moved on the ground that Claimant’s various claims were not properly verified. As a result, any question regarding the sufficiency of the verifications is not before the Court.

Finally, Claimant relies on Colon v State of New York, 146 Misc 2d 1034 (1990). The limited issue in Colon was whether recent case law had converted an error in the manner of service from an issue of personal jurisdiction which can be waived to a nonwaivable defect in the subject matter jurisdiction of the Court. This is no longer an issue as § 11 (c) of the Court of Claims Act makes it clear that an objection to the time limitations of the Court of Claims Act and to its manner of service requirements are waived if not raised by motion served before a responsive pleading is required or in the responsive pleading. Here, Defendant did not waive its right to object to the manner of service as Defendant sufficiently raised the issue of improper service by regular mail as an affirmative defense in each of the answers it served in response to the claims before the Court. The Court concludes that claim nos. 114175, 114176, 114288, 114289, 114290 and 115259 were all improperly served by regular mail and not served personally or by certified mail, return receipt requested, as required by § 11 (a) of the Court of Claims Act, nor did Defendant waive its right to object to the manner of service under § 11 (c) of the Court of Claims Act. Accordingly, these claims are all jurisdictionally defective and must be dismissed.

Based on the foregoing, it is hereby

ORDERED, that Claimant’s motion nos. M-75723 and M-75724 for summary judgment are denied; and it is further

ORDERED, that Defendant’s motion no. M-75784 and cross-motion no. CM-75783 to dismiss are granted and claim nos. 114175, 114176, 114288, 114289, 114290 and 115259 are dismissed.


March 16, 2009
Buffalo, New York

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




[1]. Claimant has submitted a one page document entitled “motion for relief” which appears to be an attempt to combine a notice of motion with a supporting affidavit. This document indicates that it is, at least in part, an affidavit sworn to on October 10, 2008. No jurat follows Claimant’s signature and the only document sworn to is the accompanying affidavit of service. Claimant’s papers thus fail to comply with CPLR 2214 and 3212 or with §§ 206.8 and 206.9 of the Uniform Rules for the Court of Claims. Because Claimant is an inmate appearing pro se, the Court has read and considered Claimant’s papers.
[2]. see footnote #1.
[3]. Claimant’s unsworn statement ends with the notation that it is true and correct under penalty of perjury. Pursuant to CPLR 2106, however, only an attorney or a non-party doctor, osteopath or dentist authorized to practice in the State of New York may serve and file an affirmation in lieu of an affidavit. The Court need not, therefore, consider Claimant’s unsworn statement. Because Claimant is an inmate proceeding pro se, however, the Court has read and considered Claimant’s statement.
[4]. Claimant’s separate statements dated October 31, 2008 and November 3, 2008 were filed together with an affidavit of service. No jurat, however, follows Claimant’s signature on any of the separate statements. The Court need not, therefore, consider these unsworn statements. Because Claimant is an inmate proceeding pro se, the Court has read and considered these statements.
[5]. Claimant’s unsworn statement is accompanied by an affidavit of service. No jurat, however, follows Claimant’s signature at the end of the statement. Claimant’s notation that the statement is true and correct under penalty of perjury is insufficient to qualify the statement as an affirmation (see footnote # 3). The Court need not, therefore, consider Claimant’s unsworn statement. Because Claimant is an inmate proceeding pro se, however, the Court has read and considered Claimant’s statement.
[6]. This and other unreported Court of Claims decisions may be found on the Court’s website at www.nyscourtofclaims.state.ny.us.