New York State Court of Claims

New York State Court of Claims

LOVE v. THE STATE OF NEW YORK, #2009-044-546, Claim No. 116463, Motion Nos. M-76444, M-76615


Synopsis


Defendant’s motion to dismiss for improper service granted. Claimant’s motion for permission to late file claim relating to alleged discrimination on basis of religion denied.

Case Information

UID:
2009-044-546
Claimant(s):
RICHARD C. LOVE, JR.
Claimant short name:
LOVE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116463
Motion number(s):
M-76444, M-76615
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
RICHARD C. LOVE, JR., pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 12, 2009
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, filed Claim No. 116463 to recover for injuries allegedly received when, while he was incarcerated at Elmira Correctional Facility (Elmira), defendant State of New York (defendant) refused to allow him to call his wife after being informed that her mother had died. Defendant answered and asserted various affirmative defenses. Defendant now moves (Motion No. M-76444) to dismiss the claim on the ground that it was improperly served on the Office of the Attorney General by regular mail, rather than by personal service or by certified mail, return receipt requested. Claimant opposes the motion, and also moves for permission to file and serve a late claim (Motion No. M-76615). Defendant opposes claimant’s motion. Claimant replies. Claimant alleges that on November 12, 2008, “a Deacon McGuire” informed claimant that his wife had called the facility and indicated that her mother had passed away.[1] Claimant states that he requested permission from Deacon McGuire to go to the Chaplain’s Office where they could speak in private, and claimant could make a telephone call to his wife. Deacon McGuire refused, allegedly stating that “[w]e don’t give phone calls here at Elmira and that there’s nothing to talk about because [claimant] was a Muslim and not a Protestant or Baptist.”[2] Claimant further alleges that on November 24, 2008, he met with another “clergy”[3] who allowed claimant to call his wife, and also gave him an Inmate Grievance Form to complete. Although the claim is not entirely clear, claimant is apparently attempting to assert a cause of action for a constitutional tort, i.e., that he was discriminated against based upon his religion. In an action for damages caused by a constitutional tort, the claim must be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the claim, unless a notice of intention to file a claim is served upon the Attorney General within 90 days after the accrual of such claim (Court of Claims Act § 10 [3], [3-b]; see Lyles v State of New York, 3 NY3d 396 [2004]). Court of Claims Act § 11 (a) requires that service on the Attorney General’s office be made either personally, or by certified mail, return receipt requested.

Claimant’s affidavit of service annexed to the claim states that claimant mailed the claim on February 19, 2008 [sic].[4] However, the envelope addressed to the Attorney General (postmarked February 20, 2009) and submitted as Exhibit A to defendant’s motion indicates a postage amount of $0.42, which is clearly insufficient for certified mail, return receipt requested. As defendant correctly notes, claimant’s failure to comply with the statutory certified mail requirement mandates dismissal, as the Court has no subject matter jurisdiction (see Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). Accordingly, Claim No. 116463 is dismissed in its entirety.

The Court must therefore address claimant’s motion for permission to file and serve a late claim. A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act

§ 10 [6]). Claimant asserts that the allegedly wrongful conduct occurred on November 12, 2008. The statute of limitations for a cause of action to recover for a constitutional tort is three years (Brown v State of New York, 89 NY2d 172, 184 [1996]). Accordingly, this motion served on April 19, 2009 is timely, and the Court has jurisdiction to determine the merits.

Having determined that the motion is timely, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act

§ 10 (6) in determining a motion to permit a late filing of a claim are whether:

1) the delay in filing the claim was excusable;

2) defendant had notice of the essential facts constituting the claim;

3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;

5) the failure to file or serve upon the attorney general a timely claim or to

serve upon the attorney general a notice of intention resulted in substantial prejudice to defendant; and

6) claimant has any other available remedy.

Claimant asserts that the delay in filing a claim was justified because he did not have access to legal counsel, nor did he have sufficient funds in his inmate account to pay for certified mail, return receipt requested. Neither claimant’s ignorance of the requirements of the Court of Claims Act nor his failure to request an advance for postage pursuant to Department of Correctional Services (DOCS) Directives 4421 or 2788 (see Johnson v State of New York, Ct Cl, July 5, 2007, Schaewe, J., Claim No. 113075, Motion No. M-72965 [UID # 2007-044-545]) are adequate excuses for his delay in timely serving a notice of intention to file a claim, or in timely filing and serving a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 [2002], lv dismissed 99 NY2d 589 [2003]). Accordingly, this factor weighs against claimant.

The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. Claimant asserts that defendant had notice of the essential facts of his claim because he filed a grievance concerning the incident at Elmira. Defendant concedes notice of the essential facts of the claim. Accordingly, the factor of notice weighs in favor of claimant.

However, defendant argues that it had no opportunity to investigate this matter and further, that it will be substantially prejudiced in its defense of the claim. In opposition to this motion, defendant has submitted documentation that the State has no record of having provided notification to claimant of a death in his family (see DOCS Directive 4206), nor a record of claimant having filed any grievances while he was incarcerated at Elmira. However, based upon these submissions, defendant has clearly conducted at least a cursory investigation of the matter. Further, the Court cannot discern any prejudice to defendant in its defense of this claim. Thus, the factors of opportunity to investigate and the lack of substantial prejudice also weigh in favor of claimant.

The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth.,

92 Misc 2d 1, 10 [1977]). In order to establish a meritorious claim, a claimant 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 claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York,

154 Misc 2d 199, 202-203 [1992]).

The Court of Appeals has recognized the existence of a constitutional tort as a “narrow remedy” to assure a constitutional provision’s effectiveness and to further its purpose (see Brown v State of New York, supra at 192). However, it is not necessary to recognize a constitutional tort in situations where a claimant has adequate, alternate remedies such as by way of common-law tort, declaratory, or injunctive relief actions, or pursuant to a CPLR Article 78 proceeding (see Martinez v City of Schenectady, 97 NY2d 78 [2001]; see also Van Duyne v State of New York, Ct Cl, Aug. 4, 2003, Hard, J., Claim No. 103802 [UID # 2003-032-518]). Article 1, Section 3 of the New York State Constitution provides that “[t]he free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind.” Pursuant to Correction Law § 610, this right has been expressly extended to inmates incarcerated in New York correctional facilities. Any inmate such as claimant, who believes that he or she has been aggrieved, “may institute proceedings in the supreme court of the district where such [correctional facility] is situated” (Correction Law § 610 [3]; see Matter of Rivera v Smith, 63 NY2d 501, 510 [1984]; Van Duyne v State of New York, supra). Given the existence of an alternate remedy, this court need not recognize a constitutional tort claim (see Martinez v City of Schenectady, supra; Bullard v State of New York, 307 AD2d 676 [2003]).[5] The Court therefore finds that the proposed cause of action lacks the appearance of merit. Accordingly, this factor weighs against claimant.

The final factor to be considered is whether claimant has any other available remedy. The Court finds that the Court of Claims is not the proper venue for this claim, despite defendant’s concession to the contrary. As discussed previously in this Decision and Order, an inmate’s claim of religious discrimination in violation of Correction Law § 610 may be addressed pursuant to a CPLR Article 78 proceeding, commenced in Supreme Court in the district in which the correctional facility is located. This factor therefore weighs against claimant.

Three of the six statutory factors, including the crucial factor of merit, weigh against claimant. Accordingly, claimant’s motion for permission to file and serve a late claim is denied.

In conclusion, Motion No. M-76444 is granted and Claim No. 116463 is dismissed in its entirety. Claimant’s Motion No. M-76615 for permission to serve and file a late claim is denied.


August 12, 2009
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on defendant’s motion and claimant’s motion:

1) Notice of Motion (Motion No. M-76444) filed on March 26, 2009; Affirmation of Roberto Barbosa, Assistant Attorney General (AAG), dated March 24, 2009, and attached Exhibits A and B.

2) Notice of Motion (Motion No. M-76615) filed on April 30, 2009; Unsworn Affidavit of Richard C. Love, Jr., dated April 15, 2009, and attached exhibit.

3) Affirmation in Opposition (to Motion No. M-76615) of Roberto Barbosa, AAG, dated May 27, 2009, and attached Exhibits A through C.

4) Replying Affidavit of Richard C. Love, Jr. (Motion Nos. M-76444 and M-76615), sworn to on June 9, 2009.


5) Claimant’s Addendum (Motion No. M-76444) filed on July 6, 2009.
Filed papers: Claim filed on February 23, 2009; Verified Answer filed on March 23, 2009.

[1]. Although he was apparently not notified until November 12, 2008, claimant initially stated that his wife called the facility on November 10, 2008 to report the death of her mother. However, in a supplemental submission to his motion, claimant indicates that his wife’s call to the facility was made on November 11, 2008. In any event, it does not appear that claimant is asserting a cause of action based upon any delay in notifying him of his mother-in-law’s death.
[2]. Claim No. 116463 filed Feb. 23, 2009, ¶ 2.
[3]. Id.
[4]. Although defendant does not raise the issue of timeliness in its answer, the Court notes that the claim was received in the Attorney General’s Office on February 23, 2009 and filed with the Clerk of the Court on that same date, both more than 90 days after the incident allegedly occurred on November 12, 2008.
[5]. Because the Court of Claims does not have jurisdiction to consider a Federal Constitutional claim (Brown v State of New York, supra), to the extent that this motion seeks permission to file such a cause of action, it is denied.