Defendant's motion to dismiss is denied, with the exception of Claimant's fourth cause of action which is dismissed.
|Claimant short name:||JOHNSON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||WATURI JOHNSON
|Defendant's attorney:||ANDREW M. CUOMO
Attorney General of the State of New York
By: Joel L. Marmelstein, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 14, 2010|
|See also (multicaptioned case)|
Defendant has moved to dismiss the underlying claim pursuant to CPLR 3211 (a) (2), (7) and (8) by pre-answer motion. Claimant responded with a notice of motion seeking to strike an affirmative defense accompanied by an affidavit in support thereof. The Court has treated these documents as opposition to Defendant's motion, because no Answer has yet been filed in this action and, thus, no affirmative defenses have yet been raised.
The claim alleges four causes of action based upon events which occurred at the Gouverneur Correctional Facility on April 19, 2009. The first cause of action alleges an assault and battery by correction officers at the facility; the second asserts either the facility's negligence in obtaining medical care for Claimant or a claim for medical malpractice. The third and fourth causes of action allege constitutional violations; the third, under the New York State Constitution and the fourth, under the United States Constitution.
Procedurally, the Claimant properly served the Attorney General's Office in Albany with a timely Notice of Intention to File a Claim on July 13, 2009. A claim was mailed to the same office and appears to have been received on February 11, 2010. The postage on the envelope was $1.05. The claim was not sent certified mail, return receipt requested, as required by Court of Claims Act § 11(a) (i), nor was it personally served.
Defendant moved to dismiss the claim under the enumerated sections of the CPLR on March 1, 2010. Claimant responded on March 15, 2010. In the meantime, Claimant re-served the claim by certified mail, return receipt requested, on March 11, 2010, which Defendant has acknowledged receiving. In his response filed March 30, 2010, the Assistant Attorney General still seeks dismissal of the third and fourth causes of action. Claimant did not respond to Defendant's arguments to dismiss the third and fourth causes of action.
As set forth in Brown v State of New York, 89 NY2d 172, a violation of the New York State Constitution can be brought in this Court if:
(1) the applicable constitutional provision is self-executing; (2) monetary damage remedies further the purpose of the underlying constitutional provisions and necessarily assure its effectiveness; (3) the provisions are such that they impose a clearly defined duty on the State officers and/or employees; (4) declaratory and injunctive relief is inadequate; (5) money damages necessarily deter governmental conduct and make the claimant whole (cf. Griffen v State of New York, Ct Cl, Scuccimarra, J., Cl. No. None, Motion No. M-72280, December 4, 2006 [UID #2006-030-585]).
The Claimant alleges a violation of Article 1, § 5 of the New York State Constitution which prohibits cruel and unusual punishments of inmates. Case law holds that this section of the New York State Constitution "meets the Brown criteria for permitting a constitution tort claim for money damages in this Court when there is a deliberately indifferent response by prison officials to the medical needs of inmates." (De La Rosa v State of New York, 173 Misc 2d 1007, 1010; cf. Zulu v State of New York, 2001 WL 880833, Patti, J.; Davis v State of New York, 5 Misc 3d 1011 [A], 2004 WL 2532295; Waxter v State of New York, 6 Misc 3d 1035 [A], 2005 WL 562745; Thomas v State of New York, 10 Misc 3d 1072 [A], 2005 WL 3681655).
Brown has also been interpreted to mean that where there is a statutory or common law remedy available that "vindicates the right protected by the constitutional provision" then the constitutional cause of action is precluded (Remley v State of New York, 174 Misc 2d 523, 527; cf. Chmielewsky v State of New York, Ct Cl, King, J., Cl. No. 91639, 1998).
Given that Defendant only articulated a supportive argument for dismissal of Claimant's third cause of action in its response papers, coupled with the fact no discovery has been conducted and Claimant is pro se, the Court will not, at this juncture, rule as a matter of law that this claim fails to state a third cause of action (see Davis v State of New York, supra).
As to the fourth cause of action, this Court lacks subject matter jurisdiction to hear this portion of the claim.
The Court of Claims does not have the jurisdiction to hear actions based on alleged violation of rights guaranteed by the United States Constitution, because the State is not a "person" amenable to suit under 42 USC § 1983 (Will v Michigan Dept. of State Police, 491 US 58 ; Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]; Zagarella v State of New York, 149 AD2d 503 [2d Dept 1989]; Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986]).
(Droz v State of New York, Ct Cl, Sise, P. J., Cl. No. 108142, Motion No. M-70955,
March 21, 2006, [2006-028-533]; cf. Brown v State of New York, supra; Welch v State of New
York, 286 AD2d 496). A Court may consider, even sua sponte, an issue of subject matter jurisdiction (Signature Health Center, LLC v State of New York, 42 AD3d 678, 679).
Accordingly, Defendant's motion is granted as to Claimant's fourth cause of action. Defendant's motion is otherwise denied.
June 14, 2010
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding this motion:
1) Notice of Motion.
2) Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General, in support with exhibits attached thereto.
3) "Notice of Motion Pursuant to C.P.L.R. § 3211 (b), to Strike Defendant's Affirmative Defense" and Affidavit in Support of Waturi Johnson, sworn to March 11, 2010, with exhibits attached thereto.
4) Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General.