Opinion
# 2013-038-555 Motion No. M-83659
09-17-2013
JOSE RODRIGUEZ v. STATE OF NEW YORK
Synopsis
Claimant's motion for late claim relief pursuant to Court of Claims Act § 10 (6) denied.
Case information
UID: 2013-038-555 Claimant(s): JOSE RODRIGUEZ Claimant short name: RODRIGUEZ Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): None Motion number(s): M-83659 Cross-motion number(s): Judge: W. BROOKS DeBOW Claimant's attorney: JOSE RODRIGUEZ, Pro se ERIC T. SCHNEIDERMAN, Attorney General Defendant's attorney: of the State of New York By: Belinda A. Wagner, Assistant Attorney General Third-party defendant's attorney: Signature date: September 17, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, an individual incarcerated in a state correctional facility, moves pro se pursuant to Court of Claims Act § 10 (6) for permission to serve and file a late claim. Defendant opposes the motion.
Among the various papers submitted in support of claimant's motion (see Claimant's Exhibit A), there is a "Notice of Intention to File a Claim" and a "Claim for Damages," both of which bear a stamp indicating that those documents were received by the Attorney General on October 26, 2012. These two documents contain allegations that appear to be related, but which are not identical. Inasmuch as Court of Claims Act § 10 (6) requires that a motion for late claim relief be supported by a copy of the proposed claim, and as the submitted "Claim for Damages" is the document that most closely resembles a proposed claim, the Court will construe the "Claim for Damages" as the proposed claim which claimant now seeks permission to file and serve.
It is noted that the facts asserted and the arguments made in claimant's papers in support of the motion do not correlate exactly with the allegations of the claim that is submitted with the motion. However, should the Court disregard the claim that is submitted by claimant, the instant motion would have to be denied for failure to submit a proposed claim (see Court of Claims Act § 10 [6]; Davis v State of New York, 28 AD2d 609 [3d Dept 1967]; Di Bacco v State of New York, 57 Misc 2d 832, 834 [Ct Cl 1968]; Thompson v State of New York, UID No. 2008-044-577 [Ct Cl, Schaewe, J., Sept. 9, 2008]). Defendant's opposition to claimant's motion does not argue the absence of a proposed claim, but it treats the claim that was received by the Attorney General on October 26, 2012 as a proposed claim. Accordingly, this Court will also construe the submission of this pro se claimant as including a proposed claim so that his motion may be afforded substantive consideration.
The proposed claim appears to relate to a Superintendent's Hearing was conducted on October 15, 2012 for an incident that occurred on September 24, 2012, and alleges that the hearing was untimely and violated claimant's right to due process (see Claim for Damages, ¶ 3). It appears to further allege that the hearing was conducted by the Upstate Correctional Facility Deputy Superintendent for Security Services, which was improper because that person was involved in the investigation of the incident (see id. ¶¶ 2, 4, 5). The proposed claim includes allegations that defendant's employees violated claimant's due process rights (see id. ¶¶ 3, 4), and that their actions were arbitrary, capricious, an abuse of authority, and deliberately indifferent (id. ¶¶ 9, 11). It asserts that claimant has suffered unspecified discrimination, deprivation of property, and acts of retaliation and revenge (see id. ¶¶ 8, 9), and claimant seeks damages in the amount of $10,000.00.
When deciding a motion to file a late claim, the Court is required by Court of Claims Act § 10 (6) to consider, among other factors, "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether 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 the state; and whether the claimant has any other available remedy." The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]), and the weight accorded the various factors is a matter within the discretion of the Court.
The excuses offered by claimant are that he is ignorant of the law and lacks competent legal assistance at his correctional facility, which, he argues, is demonstrated by the fact that the Notice of Intention and Claim that he served upon the Attorney General on October 26, 2012 were sent back to him (see Claimant's Affidavit in Support, ¶ 3). Defendant acknowledges receipt of these documents by regular mail on October 26, 2012. However, the Upstate Correctional Facility (UCF) Law Library Memo regarding "Notice of intent to file claim" is attached to claimant's motion (see id. Exhibit A), and it fully instructs claimant as to the substance of a notice of intention, as well as the time and method of service of a notice of intention. To the extent that claimant misunderstood these instructions, neither ignorance of the law nor limited access to legal materials due to confinement in a correctional facility are acceptable excuses the failure to timely file and serve a claim or serve a notice of intention (see Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; Matter of Thomas v State of New York, 272 AD2d 650, 651 [3d Dept 2000]). Accordingly, this factor weighs against claimant's motion.
Whether the State had notice of the essential facts constituting the claim and had an opportunity to investigate the circumstances underlying the claim, and whether 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 the State are closely related, and may be considered together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Claimant's motion demonstrates that his Notice of Intention and Claim were received by the Attorney General a mere eleven days after the disciplinary hearing was conducted on October 15, 2012. Inasmuch as the claim that was served on October 26, 2012 is the claim that is being treated as the proposed claim on this motion for late claim relief, it is clear that defendant had timely notice and an opportunity to investigate the claim, and that the delay in timely filing the claim did not result in substantial prejudice to the State, and defendant does not contend otherwise. Thus, these factors weigh in favor of claimant's motion.
The appearance of merit to a proposed claim is perhaps the most significant factor for the Court to consider because Court of Claims Act § 10 (6) reflects a legislative determination that the Court of Claims should permit a potential litigant to have his or her day in court (see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]), yet a litigant should not be subjected to the futility of pursuing a meritless claim (see Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [3d Dept 2009]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In general, a party seeking to establish the merit of a proposed late claim need not demonstrate a likelihood that he will prevail on his claim. Rather, a proposed claim has an appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not patently groundless, frivolous or legally defective; and (2) all of the evidence submitted on the motion establishes reasonable cause to believe that a valid cause of action exists (see Matter of Santana, 92 Misc 2d at 11).
At the threshold, it is difficult - as defendant argues - to discern a maintainable cause of action in the proposed claim. To the extent that the proposed claim is based upon the alleged untimeliness of the disciplinary hearing, such a contention is to be litigated in Supreme Court in a petition pursuant to CPLR article 78 (see e.g. Matter of Van Gorder v New York State Dept. of Correctional Servs., 42 AD3d 834 [3d Dept 2007]; Matter of Granger v Goord, 6 AD3d 902 [3d Dept 2004]). If the Supreme Court determines that there was a violation of time requirements, and the claimant was consequently held in disciplinary confinement, a claimant may state a cause of action for wrongful confinement (see e.g. DuBois v State of New York, 25 Misc 3d 1137 [Ct Cl 2009]). Here, however, claimant's motion does not demonstrate that claimant has sought review of the administrative disciplinary determination in an article 78 proceeding in Supreme Court, nor does the claim allege any of the factual elements of a cause of action for wrongful confinement (see Broughton v State of New York, 37 NY2d 451, 456 [1975] [defendant's intentional confinement of claimant, claimant's consciousness of and lack of consent to the confinement, and lack of privilege to confine him]). The mere allegation that the disciplinary hearing was untimely does not give rise to a cause of action that is maintainable in the Court of Claims.
Nor can claimant litigate a cause of action for violation of either federal or state constitutional due process rights in the Court of Claims. It is well established that this Court lacks subject matter jurisdiction over a claim under the federal constitution, which must be brought in federal court pursuant to 42 USC § 1983 (see Brown v State of New York, 89 NY2d 172, 185 [1996]; Zagarella v State of New York, 149 AD2d 503, 504 [2d Dept 1989]; Ferrer v State of New York, 172 Misc 2d 1, 5 [Ct Cl 1996]). To the extent that claimant is seeking compensation for a violation of the state constitutional right of due process (see NY Const art I, § 6), a private right of action for violations of the state constitution may be stated in limited circumstances, but the constitutional tort is a "narrow remedy" that may be pursued only when no other remedy is available to enforce the claimed constitutional right (see Brown v State of New York, 89 NY2d 172, 189; 192 [1996]; Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]; Waxter v State of New York, 33 AD3d 1180 [3d Dept 2006]; Bullard v State of New York, 307 AD2d 676, 678 [3d Dept 2003]). Here, claimant's state constitutional right to due process is parallel to the federal constitutional right, which may be enforced in a federal action pursuant to 42 USC § 1983, and the availability of this alternative remedy forecloses a state constitutional tort claim (see Pride v State of New York, UID No. 2012-040-067 [Ct Cl, McCarthy, J., Aug. 14, 2012]).
Defendant argues that to the extent that claimant alleges a loss of property, he has not stated the nature of the property that was lost or damaged, nor has claimant demonstrated that he has exhausted his administrative remedies as required by Court of Claims Act § 10 (9). These arguments are impertinent because the late claim remedy pursuant to Court of Claims Act § 10 (6) is not available for untimely inmate property claims (see Roberts v State of New York, 11 AD3d 1000 [4th Dept 2004]). In sum, claimant has not demonstrated that his proposed claim has merit within the meaning of Court of Claims Act § 10 (6), and thus, this factor weighs in a significant degree against granting claimant's motion for late claim relief.
Finally, and as discussed above, alternative remedies for review of the conduct of the disciplinary proceeding were or may be available to claimant in the nature of an article 78 proceeding and/or a federal action pursuant to 42 USC § 1983. The availability of other remedies weighs against granting claimant's motion.
Having considered claimant's motion for late claim relief, including his proposed claim, and having considered and weighed each of the factors set forth in Court of Claims Act § 10 (6), especially the factor that the proposed claim appears to lack merit, the Court will exercise its discretion to not grant claimant's motion. Accordingly, it is
ORDERED, that motion number M-83659 is DENIED.
September 17, 2013
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Notice of Motion to File Late Claims, dated June 17, 2013;
(2) Claimant's Affidavit in Support of Motion to File Late Claim, sworn to June 14, 2013, with Exhibit A;
(3) Claimant's "Affirmation," dated June 17, 2013;
(4) Claimant's Memorandum of Law, dated June 17, 2013;
(5) Affirmation in Opposition of Belinda A. Wagner, AAG, dated August 2, 2013, with Exhibits A-C;
(6) Claimant's Reply to Defendant's Affirmation, dated August 8, 2013;
(7) Claimant's "Declaration," dated August 12, 2013.