The defendant's motion to dismiss pro-se claimant's claim alleging improper handling of his grievances resulting in lack of access to the courts in retaliation is granted because the Court lacks jurisdiction to review.
|Claimant short name:||BARNES|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DEBRA A. MARTIN|
|Claimant's attorney:||NO APPEARANCE|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: ANTHONY ROTONDI, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 13, 2021|
|See also (multicaptioned case)|
The following papers were read on defendant's motion to dismiss:
1. Notice of Motion and Affirmation of Anthony Rotondi, AAG, with attached exhibit, filed July 13, 2020.
Before the Court is the defendant's pre-answer motion to dismiss this claim pursuant to CPLR 3211 (a) (2) and (7). The claim appears to be in response to the manner in which Upstate Correctional Facility's Grievance office handled his grievances between November 22, 2019 and February 19, 2020. The alleged theories of liability were "ministerial negligence, negligence, improper training and supervision, arbitrary and capricious abuse of authority in retaliation, revenge or dissemination oppression" by the Grievance office in refusing to accept or its mishandling of grievances per Department of Corrections and Community Supervision's (DOCCS) policy 4040. In addition, claimant alleged defendant deprived him of access to the courts by failing to mail his notice of intent to file a claim on January 30, 2020 and February 7, 2020. The stated grounds for the defendant's motion were that claimant failed to state a cause of action and the Court lacks jurisdiction over the allegations set forth in the claim. After previously granting claimant two adjournments to respond to the motion, the Court declines to grant another and did not consider claimant's late answering paper, entitled "Claimant's Memorandum of Law in Support of Affidavit in Opposition of Defendant's Motion to Dismiss."(1)
In examining whether the claimant has stated a cause of action, the Court must start with the Court of Claims Act § 8 which sets forth the State's waiver of immunity from liability and action for money damages.
The Court concurs with the defendant's analysis of the claimant's claim. The Court of Claims is a court of limited jurisdiction and lacks the authority to review the propriety of DOCCS' handling of grievances. A two-part inquiry is employed to determine if the Court of Claims has subject matter jurisdiction over a claim. First, the Court must consider "[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim" (Matter of Gross v Perales, 72 NY2d 231, 236 , rearg denied 72 NY2d 1042 ; see Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d 1142, 1144 , lv denied 12 NY3d 712 ; Sarbro IX v State of N.Y. Off. of Gen. Servs., 229 AD2d 910, 911 )." (Green v State of New York, 90 AD3d 1577, 1577 .) The second inquiry is whether the claim requires review of an administrative agency's determination because, regardless of whether the claimant seeks monetary damages, the Court of Claims lacks subject matter jurisdiction to do so. (Id citing Gross, 72 NY2d at 236; Buonanotte, 60 AD3d at 1143-1144; Matter of Salahuddin v Connell, 53 AD3d 898, 899 .)
The claim must be dismissed because it would require review of DOCCS's administrative determinations, which is strictly in the providence of the Supreme Court in the form of an Article 78 proceeding. (CPLR Article 78; see Scherbyn v Wayne-Finger Lakes Bd. of Co-op. Educational Services, 77 NY2d 753, 757 ; Gross v Perales, 72 NY2d 231, 236 .) The Court of Claims equally lacks power to compel DOCCS to accept a grievance. This type of relief may only be sought in a special proceeding brought pursuant to an CPLR Article 78 in Supreme Court. Therefore, the Court of Claims lacks jurisdiction to review whether defendant violated directive 4040 or to compel its officers and employees to comply with it. (see Scott v State of New York, UID No. 2009-018-020 [Ct Cl, Fitzpatrick, J., Mar. 24, 2009].)
A claim for retaliation is not within the jurisdiction of the Court of Claims. Such a claim must be raised either in an Article 78 proceeding in State Supreme Court or in a federal court pursuant to 42 USC 1983 (see D.G. v State of New York, UID No. 2020-038-505 [Ct Cl, DeBow, J., Jan. 9, 2020].) Likewise, claimant's allegations regarding denial of right of access to administrative or judicial process must also be raised in a 42 USC 1983 action in federal court. (Battee v State of New York, UID No. 2019-054-002 [Ct Cl, Rivera, J., Jan. 10, 2019].)
Lastly, claimant's cause of action sounding in negligent training and supervision is meritless because the claim did not allege an "independent act of negligence outside the scope of employment" or that the employer "was aware of, or reasonably should have foreseen, the employee's propensity to commit such an act" (Lamb v Stephen M. Baker, O.D., P.C. 152 AD3d 1230, 1231 [4th Dept 2017] quoting Seiden v Sonstein, 127 AD3d 1158, 1160-1161 [2d Dept 2015]). As a general rule, an employer is liable for employees' actions when the employee is acting within the scope of their employment "and no claim may proceed against the employer for negligent hiring, retention, supervision or training." (Holmes v State of New York, UID No. 2019-018-048 [Ct Cl, Fitzpatrick, J., Aug. 8, 2019] [internal citations omitted].)
In light of the above,
ORDERED, defendant's motion to dismiss (M-95664) is granted and claim no. 134518 is dismissed in its entirety.
January 13, 2021
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims
1.The motion was initially returnable on September 9, 2020. At claimant's request the motion return dated was adjourned twice. By letter dated October 15, 2020, claimant was instructed that answer papers must be filed by November 2, 2020. The Court received a third request for an extension of time to respond to the motion by letter dated November 10, 2020.