New York State Court of Claims

New York State Court of Claims

PACHECO v. THE STATE OF NEW YORK, #2009-041-506, Claim No. 112110


Claim is dismissed since court of claims lacks jurisdiction where claimant challenges administrative policies of agency in certain causes of action and failed to exhaust administrative remedy with respect to lost property claim.

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:
Defendant’s attorney:
New York State Attorney GeneralBy: Michele M. Walls, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 26, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The claim arose at Clinton Correctional Facility (Clinton) and was tried there on May 1, 2009. The claim, admitted into evidence as Exhibit 1, seeks damages arising from two separate matters:

1. Defendant’s confiscation of claimant’s prescription eyeglasses (goggle-type “rec specs,” containing plastic frames), pursuant to a newly instituted policy established by the Deputy Superintendent of Security, between May 27, 2005 and November 9, 2005, leading to an unsuccessful administrative grievance by claimant.
2. Defendant’s censoring (and in one instance, confiscation) of a magazine received by claimant, for facility security reasons, leading to several unsuccessful administrative grievances by claimant.

The claim thus alleges, essentially, that defendant made administrative determinations involving facility security policy with which claimant disagreed. There is no indication whether claimant pursued CPLR article 78 relief after exhausting his administrative challenges to the facility’s policies.

The claim seeks damages for alleged violations of the United States and New York State Constitutions and the “Common Right of Case Law,” together with damages for personal injuries sustained through medical negligence and loss of personal property.

The jurisdiction of the Court of Claims is invoked where money damages are the essential object of the claim, unlike an instance where the principal claim is equitable in nature (such as to review action by a state agency), with monetary relief being incidental to the principal claim (see Harvard Fin. Servs. v State of New York, 266 AD2d 685, 685 [3d Dept 1999]; Matter of Gross v Perales, 72 NY2d 231, 236 [1988]).

In City of New York v State of New York, 46 AD3d 1168, 1169-1170 [3d Dept 2007]), the court explains that:
“Two inquiries must be made to determine if the Court of Claims has subject matter jurisdiction. As that court has ‘no jurisdiction to grant strictly equitable relief’ (Psaty v Duryea, 306 NY 413, 416 [1954]), but may grant incidental equitable relief so long as the primary claim seeks to recover money damages in appropriation, contract or tort cases (see Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [1997]), ‘the threshold question is “[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim” ’ (Madura v State of New York, 12 AD3d 759, 760 [2004], lv denied 4 NY3d 704 [2005], quoting Matter of Gross v Perales, 72 NY2d 231, 236 [1988]). The second inquiry, regardless of how a claimant categorizes a claim, is whether the claim would require review of an administrative agency’s determination--which the Court of Claims has no subject matter jurisdiction to entertain (see Hoffman v State of New York, 42 AD3d 641, 642 [2007]), as review of such determinations are properly brought only in Supreme Court in a CPLR article 78 proceeding (see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 [1991]).”
In order for the Court to award claimant damages in this action, other than for alleged personal injury or loss of property, it would necessarily have to review the administrative determinations of the Department of Correctional Services involving matters of facility security which, as set forth above, it cannot do. The Court lacks subject matter jurisdiction to award claimant damages resulting from the defendant’s policy determinations regarding facility security, and those aspects of the claim seeking recovery based upon the challenged policy determinations related thereto are dismissed.

At the conclusion of claimant’s proof, the defendant moved to dismiss the claim for lack of subject matter jurisdiction and the Court reserved decision. That motion is now granted to the extent the claim challenges defendant’s policy determinations described above.

To the extent that the claim seeks recovery for personal injuries resulting from defendant’s confiscation of claimant’s glasses, the Court’s subject matter jurisdiction requirements are satisfied.

Claimant alleges that the confiscation of his glasses caused pain, tearing, blurred vision and headaches for 167 days.

It “is well settled that where the State engages in a proprietary function such as providing medical and psychiatric care, it is held to the same duty of care as private individuals and institutions engaged in the same activity” (Rattray v State of New York, 223 AD2d 356, 357 [1st Dept 1996]).

Defendant is required to exercise professional medical judgment within the range of accepted medical standards in its treatment of claimant. The law is clear that “neither a medical provider . . . nor the State or governmental subdivisions employing the medical provider, may be held liable for a mere error in professional judgment” (Ibguy v State of New York, 261 AD2d 510 [2d Dept 1999], lv denied 93 NY2d 816 [1999]; Sciarabba v State of New York, 182 AD2d 892, 893-894 [3d Dept 1992]).

Conclusory allegations of medical malpractice, unsupported by competent evidence establishing its essential elements, are insufficient to state a prima facie case. Through a medical expert, it must be shown that defendant deviated from the standard for good and acceptable care in the locality where the treatment occurred and that the deviation was the proximate cause of the injury (Torns v Samaritan Hosp., 305 AD2d 965, 966 [3d Dept 2003]; Yamin v Baghel, 284 AD2d 778, 779 [3d Dept 2001]; Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]).

“Where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case” (Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; see Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 [2005]; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]).

The fact that claimant proceeded pro se does not excuse the need for expert medical opinion to demonstrate a deviation from the applicable standard of care (Duffen v State of New York, 245 AD2d 653, 653-654 [3d Dept 1997], lv denied 91 NY2d 810 [1998]).

Claimant presented no expert medical testimony and this is fatal to his cause of action for personal injury. Even assuming that a layperson could determine that denial of prescribed eyeglasses was negligent or was treatment or non-treatment constituting malpractice, expert medical testimony is required in order to prove proximate causation of his alleged injuries: blurred vision and headaches. The personal injury claim is dismissed.

Finally, claimant seeks recovery for loss of his personal property. There is no dispute that claimant paid $75.00 for his prescription glasses on August 12, 2003, had permission to purchase and use them at that time and that the glasses were confiscated on May 27, 2005 pursuant to new facility policy and never returned to claimant. There is also no dispute that on at least one occasion defendant destroyed claimant’s magazine rather than redacting the prohibited images or text, allegedly in violation of facility directives. Claimant cannot recover damages under a lost personal property cause of action for these items.

Court of Claims Act § 10 (9) provides as follows:
"A claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy."
There is no proof offered that claimant filed and exhausted appropriate administrative claims for lost personal property pursuant to 7 NYCRR Part 1700, entitled "Inmate Personal Property Claims," which provides a “procedure by which inmates may file claims to recover the value of personal property which has been lost, damaged or destroyed while they have been under custody of the department“ (7 NYCRR 1700.1). The regulations expressly provide that “[c]laims may originate from: (1) acts of other inmates; or (2) improper acts or omissions of department employees or agents” (7 NYCRR 1700.2).

An inmate seeking damages for lost property must exhaust the administrative remedy established by the Department of Correctional Services, which constitutes a non-waivable jurisdictional filing requirement (Williams v State of New York, 38 AD3d 646, 647 [2d Dept 2007]). Claimant has not shown that he has done so.

Even assuming claimant had properly sought recovery for the confiscated glasses through the "Inmate Personal Property Claims" procedure, his own Exhibit 4 entered into evidence states that he was offered, on May 23, 2005 (four days prior to confiscation) an opportunity to “Return the glasses to us for a refund or mail them home.” He apparently chose not to accept the offer.

With respect to the censored magazines, the proof showed that defendant properly removed certain pages of the magazines on two occasions pursuant to the defendant’s regulations and that, with respect to the confiscated November 2005 issue, claimant’s own Exhibit 6 confirms the defendant’s testimony that claimant failed to timely respond to inquiries from defendant’s Central Office Media Review, resulting in the issue’s destruction, again pursuant to the defendant’s regulations.

The property damage causes of action therefore fail.

For all of the foregoing reasons, the claim is dismissed in its entirety.

All motions not previously decided are hereby denied.

Let judgment be entered accordingly.

May 26, 2009
Albany, New York
Judge of the Court of Claims