Opinion
Claim No. 136118
12-01-2021
Carole L. GUTTERMAN, Claimant, v. The STATE of New York, Defendant.
For Claimant: The Law Office of Joseph Monaco, PC, By: Joseph D. Monaco III, Esq., New York For Defendant: HON. LETITIA JAMES, ATTORNEY GENERAL, By: Susan M. Connolly, Assistant Attorney General
For Claimant: The Law Office of Joseph Monaco, PC, By: Joseph D. Monaco III, Esq., New York
For Defendant: HON. LETITIA JAMES, ATTORNEY GENERAL, By: Susan M. Connolly, Assistant Attorney General
Maureen T. Liccione, J. The instant claim was filed on March 16, 2021 seeking damages for injuries sustained on March 18, 2019 when claimant fell at the security screening area inside the Suffolk County Supreme Court Building located at 1 Court Street, Riverhead, New York 11901. Claimant, who has disabling conditions and requires the assistance of a quad cane to walk, entered the building and was directed by a court officer, a State employee, to place her cane on a conveyor belt for x-ray inspection. Claimant then walked through the magnetometer and was instructed to collect her items, including her quad cane, from the conveyor belt. When claimant reached for her items, she fell and sustained injuries. The claim alleges eight causes of action including (1) violation of the Americans with Disabilities Act (ADA); (2) violation of the Rehabilitation Act of 1973 (RA); (3) conspiracy to deprive claimant of civil rights in violation of 42 USC § 1985 ; (4) violation of the Equal Protection Clause of the United States Constitution; (5) violation of the New York State Human Rights Law (NYSHRL); (6) violation of the Suffolk County Human Rights Law; (7) violation of New York State Civil Rights Law § 40-c ; and (8) common law negligence (see Verified Claim).
Defendant now moves to dismiss the claim on the grounds that (1) the Court lacks jurisdiction over the claim; (2) the claimant lacks standing; and (3) the claim fails to state a cause of action.
Jurisdiction
Defendant argues that the Court lacks jurisdiction over the claim to the extent that claimant seeks declaratory relief, injunctive relief, criminal relief, and punitive damages.
Insofar as the proposed claim seeks a declaration declaring that the State violated certain statutes and regulations, and declaring the rights of the claimant as to the premises, this Court lacks jurisdiction as the Court of Claims "is not the appropriate forum in which to seek declaratory relief" ( Shelton v. New York State Liq. Auth. , 61 A.D.3d 1145, 1151, 878 N.Y.S.2d 212 [3d Dept. 2009] ; CPLR § 3001 ; Court of Claims Act § 9 ). Nor is the Court of Claims the appropriate forum within which to bring a claim for injunctive relief or for punitive damages. The Court of Claims does not have jurisdiction to grant injunctive relief ( Matter of Milner v. New York State Higher Educ. Servs. Corp. , 4 Misc. 3d 221, 777 N.Y.S.2d 604 [Ct. Cl. 2004], affd 24 A.D.3d 977, 805 N.Y.S.2d 480 [3d Dept. 2005] ), and the waiver of immunity set forth in Court of Claims Act § 8 does not permit punitive damages to be assessed against the State or its political subdivisions ( Sharapata v. Town of Islip , 56 N.Y.2d 332, 452 N.Y.S.2d 347, 437 N.E.2d 1104 [1982] ). As to claimant's request to find the State guilty of a misdemeanor, the Court of Claims does not have the authority to prosecute violations of the Penal Law (see Leonichev v NYC Civil Housing Court (Kings County), et al. , UID No. 2016-049-044 [Ct Cl, Weinstein, J., Dec. 2, 2016]). The Court therefore lacks the jurisdiction to bring criminal charges against a person or entity.
Because the Court of Claims lacks the jurisdiction to grant declaratory and injunctive relief, the Court need not reach defendant's argument that the claimant lacks standing to bring claims for declaratory and injunctive relief under the ADA and the RA (see Bernstein v. City of New York , 621 Fed. Appx. 56, 57 [2d Cir. 2015] ).
Unpublished decisions and selected orders of the Court of Claims are available at http://www.nyscourtofclaims.state.ny.us.
The Court also lacks jurisdiction over the claim alleging a violation of the Suffolk County Human Rights Law. Suffolk County Code § 528-13, which establishes the procedure for bringing a complaint under the Suffolk County Human Rights Law, states that the Suffolk County Human Rights Commission (the Commission) has jurisdiction to hear claims brought under the Suffolk County Human Rights Law. The Commission investigates the claim and, if probable cause exists, refers the claim to an administrative law judge to hold a hearing and issue a decision (see Suffolk County Code § 528-13). In the event that an action or proceeding is necessary for the enforcement of any order issued by the Commission, such action or proceeding must be brought in New York State Supreme Court, Suffolk County (Suffolk County Code § 258-16 [A]). It is clear from these enforcement provisions that jurisdiction for claims brought pursuant to the Suffolk County Human Rights Law lies with the Commission and New York State Supreme Court, Suffolk County, not the Court of Claims. This cause of action is therefore dismissed.
To the extent that claimant alleges violations of his rights under the Equal Protection Clause of the United States Constitution, this Court lacks subject matter jurisdiction over such claims, as they must be brought pursuant to 42 USC § 1983 and may not be maintained in the Court of Claims, given that the State is not a "person" for purposes of the statute (see Brown v. State of New York , 89 N.Y.2d 172, 185, 652 N.Y.S.2d 223, 674 N.E.2d 1129 [1996] ; Zagarella v. State of New York , 149 A.D.2d 503, 504, 539 N.Y.S.2d 803 [2d Dept. 1989] ; Ohnmacht v. State of New York , 14 Misc. 3d 1231 [A], at *2, 2007 WL 474419 [Ct. Cl. 2007] ). Defendant also argues that claimant's 42 USC § 1983 cause of action must be dismissed. However, claimant does not assert a cause of action under 42 USC § 1983. Rather, claimants assert a cause of action for conspiracy to deprive claimant of civil rights in violation of 42 USC § 1985. However, claimant "is willing to discontinue" her claim under 42 USC § 1985 (Affirmation in Opposition, ¶ 2 [G]). Because claimant has not stated unequivocally that she wishes to discontinue this cause of action and because defendant has failed to address the relevant statute, the Court will not dismiss claimant's 42 USC § 1985 claim at this juncture.
Lastly, defendant argues that causes of action arising under the ADA and seeking monetary damages cannot be heard in the Court of Claims. Defendant cites Lugo v. St. Nicholas Assoc. , 18 A.D.3d 341, 795 N.Y.S.2d 227 [1st Dept. 2005], in support of this argument. However, Lugo analyzed a claim brought pursuant to Title III of the ADA which prohibits disability-based discrimination in public accommodations by private entities. Title II, which applies to claimant's cause of action, prohibits disability-based discrimination in the "services, programs, or activities of a public entity" ( 42 USC § 12132 ). Importantly, Title III's remedy provision ( 42 USC § 12188 [a]), is different from Title II's remedy provision ( 42 USC § 12133 ). The U.S. Supreme Court has held that the remedy provisions in Title II of the ADA authorize suits for money damages against states ( United States v. Georgia , 546 U.S. 151, 158-159, 126 S.Ct. 877, 163 L.Ed.2d 650 [2006] ). Therefore, the Court has jurisdiction over claimant's ADA claims, as the Court of Claims has jurisdiction over actions for money damages against the State of New York ( Carlson v. State of New York , 34 Misc. 3d 242, 249, 932 N.Y.S.2d 812 [Ct. Cl. 2011] ; Court of Claims Act § 9 ; see also Caballero v State of New York , UID No. 2020-015-074 [Ct Cl, Collins, J., Sept. 22, 2020]; Gill v State of New York , UID No. 2007-034-539 [Ct Cl, Hudson, J., Oct. 1, 2007]). ADA and RA Claims
Several Court of Claims decisions have held that the ADA does not permit money damages against the State (Hinz-Shaffer v State of New York , UID No. 2018-029-081 [Ct Cl, Mignano, J., Aug. 28, 2018]; Brown v State of New York , UID No. 2008-033-318 [Ct Cl, Lack, J., Sept. 26, 2008]; Reynolds v State of New York , UID No. 2006-028-564 [Ct Cl, Sise, J., July 20, 2006]; McFadden v State of New York , UID No. 2005-030-030 [Ct Cl, Scuccimarra, J., Sept. 30, 2005]; Tafari v State of New York , UID No. 2004-031-156 [Ct Cl, Minarik, J., Nov. 23, 2004]; Murray v State of New York , UID No. 2003-032-534 [Ct Cl, Hard, J., Dec. 31, 2003]). However, none of the aforementioned cases address the holding in United States v. Georgia , supra .
Title II of the ADA requires that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity" ( 42 USC § 12132 ). Section 504 of the RA requires that "[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ..." ( 29 USC § 794 [a]). The State has waived its sovereign immunity as to claims brought under the RA by its acceptance of federal funds (Caballero v State of New York , UID No. 2020-015-074 [Ct Cl, Collins, J., Sept. 22, 2020]).
Defendant argues that claimant failed to plead any factual allegations demonstrating that defendant exhibited a discriminatory animus or ill will based on claimant's disability, which is required to assert an ADA cause of action against the State. Defendant is correct that "a private suit for money damages under Title II of the ADA may only be maintained against a state if the plaintiff can establish that the Title II violation was motivated by either discriminatory animus or ill will due to disability" ( Garcia v. S.U.NY Health Sciences Ctr. of Brooklyn , 280 F.3d 98, 112 [2d Cir. 2001] ). This high burden is "consistent with state sovereign immunity and Congress's enforcement authority under Section 5 of the Fourteenth Amendment" ( Felix v. City of New York , 344 F. Supp. 3d 644, 665 [S.D. N.Y. 2018] ). Claimant alleges that the State's failure to remove architectural barriers and failure to construct and maintain an accessible entrance and security area constitutes discrimination under the ADA (Verified Claim ¶¶ 48-70). However, the claim is devoid of any allegations establishing that the State acted with discriminatory animus or ill will. Accordingly, although the Court has jurisdiction over the ADA claims, claimant has failed to state a cause of action for violation of the ADA. The ADA claim is therefore dismissed.
Defendant appears to argue that the RA claim should be dismissed on the same ground. However, the "discriminatory animus or ill will" standard applies only to ADA claims, not claims for violations of the RA (see Garcia v. S.U.NY Health Sciences Ctr. of Brooklyn , 280 F.3d at 112 ).
Defendant seeks to dismiss claimant's RA claim on the ground that claimant made inconsistent statements concerning her fall. More specifically, defendant asserts claimant's allegedly inconsistent statements in her federal complaint regarding whether she was directed to step onto an elevated platform in the security screening area or whether she was not directed to do so. Defendant also argues that claimant testified during her 50-h hearing with Suffolk County that she was able to access the courthouse later the same day that she fell. These statements, according to defendant, compel dismissal of claimant's RA claim.
The Court disagrees that these statements compel dismissal of the RA cause of action. On a motion to dismiss, claimant's claim is "liberally construed" and the allegations contained therein are accepted as true ( IMS Engrs.-Architects, P.C. v. State of New York , 51 A.D.3d 1355, 1356, 858 N.Y.S.2d 486 [3d Dept. 2008], lv denied 11 N.Y.3d 706, 866 N.Y.S.2d 609, 896 N.E.2d 95 [2008] [citations omitted]). Even if claimant stepped onto the elevated platform without direction to do so, her action would not defeat her RA claim if the security screening area was otherwise inaccessible in violation of the RA. Nor would claimant's ability to access the courthouse later on the date of her accident defeat the RA claim. Therefore, the Court denies this branch of defendants's motion to dismiss.
New York State Civil Rights Law § 40-c
To bring an action pursuant to New York State Civil Rights Law § 40-c, a claimant must serve notice upon the Attorney General "[a]t or before the commencement of [the] action" ( Civil Rights Law § 40-d ). Defendant argues that the notice of intention to file a claim served upon the Attorney General on May 17, 2019 did not assert a Civil Rights Law section 40-c claim.
A notice of intention to file a claim does not commence an action in the Court of Claims; rather, it extends the time for claimant to file and serve a claim. To commence an action, a claimant must file a claim with the Clerk of the Court and serve that same claim on the Attorney General ( Court of Claims Act §§ 10, 11 ). Here, claimant alleged a cause of action for a violation of Civil Rights Law section 40-c in her claim. Therefore, the Attorney General was properly notified at the commencement of the action.
Negligence
Defendant argues that claimant's cause of action for negligence must be dismissed because the State owned no duty of care to claimant. In support of its argument, defendant cites Judiciary Law § 39-b (2) and argues that the State is not liable for injuries not related to the cleaning or minor repair of the interior of a court facility.
To establish a prima facie case of negligence in a premises liability claim, a claimant must demonstrate by a preponderance of the credible evidence that: (1) defendant owed claimant a duty of care; (2) a dangerous condition existed that constituted a breach of that duty; (3) defendant either created the dangerous condition, or had actual or constructive notice and failed to alleviate the condition within a reasonable time; and (4) the condition was a proximate cause of the events resulting in claimant's injuries (see Solomon v. City of New York , 66 N.Y.2d 1026, 1027, 499 N.Y.S.2d 392, 489 N.E.2d 1294 [1985] ; Keating v. Town of Burke , 86 A.D.3d 660, 660-661, 927 N.Y.S.2d 411 [3d Dept. 2011] ). "[C]laimant has the burden of establishing a dangerous or defective condition that defendant created or had knowledge (actual or constructive) of, and that such condition was a cause of the accident" ( Gonzalez v. State of New York , 60 A.D.3d 1193, 1194, 875 N.Y.S.2d 327 [3d Dept. 2009], lv denied 13 N.Y.3d 712, 2009 WL 4036415 [2009] ; see also Rios v State of New York , UID No. 2016-041-510 [Ct Cl, Milano, J., Nov. 1, 2016]). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" ( Gordon v. American Museum of Natural History , 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] [citations omitted]). A claimant must "demonstrate that defendant either created the condition by its own affirmative act, was aware of a specific condition yet failed to correct it, or was aware of an ongoing and recurring unsafe condition which regularly went unaddressed" ( Kivlan v. Dake Bros., Inc. , 255 A.D.2d 782, 783, 680 N.Y.S.2d 293 [3d Dept. 1998] ).
Importantly, the Court notes that the ADA "does not set safety standards nor does it alter the scope of the duty imposed by common-law negligence principles" (Graham v State of NewYork , UID No. 2016-044-012 [Ct Cl, Schaewe, J., Nov. 7, 2016], citing Lugo v. St. Nicholas Assoc. , 18 A.D.3d at 342, 795 N.Y.S.2d 227 ; Henning v State of New York , UID No. 2010-018-151 [Ct Cl, Fitzpatrick, J., Dec. 7, 2010]). Therefore, while Garcia v. S.U.NY Health Sciences Ctr. of Brooklyn , 280 F.3d at 112, holds that a private suit for an ADA violation may be maintained against the State if a litigant establishes discriminatory animus or ill will, a failure to comply with ADA standards cannot establish an unsafe condition for the purpose of establishing a negligence claim (see Graham v State of NewYork , UID No. 2016-044-012 [Ct Cl, Schaewe, J., Nov. 7, 2016] [claimant's reliance on ADA accessibility requirements to establish an unsafe condition was a "red herring" used to divert attention from a minor defect]).
It is well settled that "[g]enerally, liability for an allegedly defective condition on property must be based on occupancy, ownership, control or special use of the premises" ( Quick v. G.G.’s Pizza & Pasta, Inc. , 53 A.D.3d 535, 536, 861 N.Y.S.2d 762 [2d Dept. 2008] ; see Melendez v. Kawasaki Rail Car, Inc. , 110 A.D.3d 965, 966, 973 N.Y.S.2d 736 [2d Dept. 2013] ) and "the existence of one or more of these elements is sufficient to give rise to a duty to exercise reasonable care" ( Quick v. G.G.’s Pizza & Pasta, Inc. , 53 A.D.3d at 536, 861 N.Y.S.2d 762 ).
Judiciary Law § 39-b (2) indicates that the State is responsible only for the cleaning and minor repairs to court facilities provided by the various local governments. Defendant argues that, because the claim does not allege that claimant sustained injuries as a result of the cleaning or minor repair of the court facility, the claim fails to state a cause of action for negligence. However, the claim alleges that the State operated, controlled, managed and supervised the premises where claimant fell (Verified Claim ¶¶ 141-144). The claim also states that the court officers who directed claimant to place her cane on the conveyor belt and walk through the magnetometer were employed by the State and that the State owned and controlled the security equipment (id. ¶ 16, 21).
Defendant does not offer any evidence to refute these allegations. Therefore, defendant's argument is without merit as it has not submitted any information as to whether the State owned, operated or controlled the security screening area where claimant fell, or employed the court officers who managed the security screening area (Ayers v State of New York , UID No. 2021-059-003 [Ct Cl, Liccione, J., Jan. 19, 2021] [denying summary judgment where the State failed to show that it did not own or control the bench that caused claimant's injuries]; Badala v State of New York , UID No. 2019-050-008 [Ct Cl, Lynch, J., Feb. 27, 2019] [finding that defendant cannot rely solely on the language of Judiciary Law § 36-b to establish that the State bears no responsibility for claimant's accident]). Accordingly, this branch of defendant's motion is denied.
Based upon the foregoing, defendant's motion to dismiss (M-96892) is GRANTED to the extent that the claims alleging violations of the ADA; the Equal Protection Clause of the Federal Constitution; the Suffolk County Human Rights Law; and for declaratory relief, injunctive relief, criminal relief, and punitive damages are dismissed. The motion is otherwise DENIED . Defendant is directed to file and serve an Answer to the Verified Claim within forty (40) days of the filing date of this Decision and Order.