Opinion
# 2015-053-527 Claim No. 126529 Motion No. M-87393
12-22-2015
SAMUEL RASHEEN RAY'MOND TOLIVER v. STATE OF NEW YORK, CITY OF BUFFALO OFFICIALS, OLIVER YOUNG/DALE HUDSON, CHRISTOPHER JACOBS, ROBERT JOHNSON, SHIRLEY TROUTMAN, MAX HUMANN, JOANNE PRITCHARD
SAMUEL RASHEEN RAY'MOND TOLIVER, Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Wendy E. Morcio, Esq. Assistant Attorney General
Synopsis
Inmate claim alleging violation of the United States Constitution, claims in admiralty and maritime law, and fraud and breach of fiduciary duty, against the State and individually named defendants are all dismissed as untimely served and for failure to state a cause of action.
Case information
| UID: | 2015-053-527 |
| Claimant(s): | SAMUEL RASHEEN RAY'MOND TOLIVER |
| Claimant short name: | TOLIVER |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK, CITY OF BUFFALO OFFICIALS, OLIVER YOUNG/DALE HUDSON, CHRISTOPHER JACOBS, ROBERT JOHNSON, SHIRLEY TROUTMAN, MAX HUMANN, JOANNE PRITCHARD |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126529 |
| Motion number(s): | M-87393 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | SAMUEL RASHEEN RAY'MOND TOLIVER, Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Wendy E. Morcio, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 22, 2015 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Samuel Rasheen Ray'mond Toliver, an inmate proceeding pro se, seeks money damages in claim no. 126529 for alleged violations of the United States Constitution, claims sounding in admiralty and maritime law, and for fraud and breach of a fiduciary duty. Claimant is questioning the validity of his indictment number 2007-01196, his subsequent conviction for Assault in the First Degree under the indictment, and the resulting sentence of 15 years for which he is currently incarcerated, with an additional five years of post release supervision. In lieu of answering the claim, Defendant State of New York moves to dismiss. Claimant opposes Defendant's motion.
Defendant's motion was made returnable on October 14, 2015. By statement dated November 16, 2015, Claimant attempts to oppose Defendant's motion. Claimant's statement is defective as it was submitted long after the time for submitting papers on this motion had expired and because it is not in the form of an affidavit, sworn to before a Notary Public. (Claimant is not a person authorized to use an affirmation in lieu of an affidavit [CPLR Rule 2106]). Attached to Claimant's statement is a verification sworn to July 27, 2015, before the letter was created, attesting to the truth of the "foregoing claim" and an affidavit of service also sworn to on July 27, 2015, attesting to the service of a notice of intention and a claim. Neither the verification nor the affidavit of service has any relevance with respect to Claimant's November 16, 2015 statement. As a result, the Court will only consider Claimant's submission to the extent that it assists the Court in comprehending Claimant's claim.
The Court of Claims is a court of limited jurisdiction, with the statutory authority to hear claims against the State of New York and certain public authorities for money damages (Court of Claims Act § 9). The State of New York is the real party in interest for claims against a state officer for conduct undertaken in an official capacity and in the exercise of a governmental function (Morell v Balasubramanian, 70 NY2d 297 [1987]; Woodward v State of New York, 23 AD3d 852 [3d Dept 2005]).
Here, Claimant has named several individuals as named Defendants. Individuals, however, cannot be sued in the Court of Claims in their individual capacity, even if they are employees of the State of New York (Court of Claims Act § 9; Smith v State of New York, 72 AD2d 937 [4th Dept 1979]). In addition, the Court of Claims does not have jurisdiction to hear claims against county employees such as named Defendants Christopher Jacobs, Erie County Clerk, and Dale Hudson (Whitmore v State of New York, 55 AD2d 745 [3d Dept 1976], lv denied 42 NY2d 810 [1977]). Nor does the Court of Claims have jurisdiction over claims against City of Buffalo officials or against named Defendant Assistant District Attorney (ADA) Max Humann, a local officer for whose torts, if any, the State is not responsible (Id. at 746; Fisher v State of New York, 10 NY2d 60 [1961]). Moreover, an Assistant District Attorney is immune from liability for actions taken within the scope of his official duties in pursuing a criminal prosecution (Drakeford v City of New York, 6 AD3d 302 [1st Dept 2004]).
The State of New York cannot be held liable for any alleged wrongs of Claimant's court appointed attorney on his criminal indictment, the named Defendant Robert Johnson, Esq. (Swain v State of New York, 294 AD2d 956 [4th Dept 2002]). Nor is the State liable for any alleged errors that named Defendant County Court Judge Shirley Troutman made in her judicial capacity. The actions of judges in carrying out their judicial functions are entitled to judicial immunity (Donald v State of New York, 17 NY3d 389 [2011]; Best v State of New York, 116 AD3d 1198 [3d Dept 2014]). Similarly, the State is not liable for the actions of court personnel, such as named Defendant Oliver Young, Esq., as court personnel are also cloaked with judicial immunity when, such as here, they are performing their duties (Welch v State of New York, 203 AD2d 80 [1st Dept 1994]). Insofar as Claimant attempts to assert claims against the individually named Defendants, these must all be dismissed.
The Court of Claims also lacks jurisdiction for violations of federal statutes or for federal constitutional tort claims (Carver v State of New York, 79 AD3d 1393 [3d Dept 2010], lv denied 17 NY3d 707 [2011]), and state constitutional claims are only actionable where there are no other options for redress (Brown v State of New York, 89 NY2d 172 [1996]; Martinez v City of Schenectady, 97 NY2d 78 [2001]). Here, Claimant could have sought to appeal his criminal conviction, albeit not in this Court, and could have commenced federal tort claims in federal district court. Insofar as the claim attempts to assert constitutional tort claims, these must be dismissed.
Court of Claims Act § 11 (b) requires a claim to "state the time when and place where such claim arose, the nature of same, and the items of damages or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed." While absolute exactness is not required, there must be substantial compliance with section 11 (b) to enable the State to investigate the claim and ascertain its potential liability (Lepkowski v State of New York, 1 NY3d 201 [2003]; Heisler v State of New York, 78 AD2d 767 [4th Dept 1980]). Here, Claimant has failed to enumerate the act or acts for which he seeks to hold the State liable and has failed to set forth an exact date when each separate act complained of occurred. Claimant's claim thus fails to comply with the jurisdictional requirements of Court of Claims Act § 11 (b).
More specifically, the Court is unable to discern any cause of action cognizable in the Court of Claims from Claimant's claim. Generally, Claimant seeks to assert causes of action under admiralty law, the Uniform Commercial Code (UCC), and for conversion. Contrary to Claimant's assertion that he is a "vessel" and that the individually named Defendants used the indictment and certificate of conviction as bills of lading under the UCC to convert or transport the Claimant as the vessel to the port of prison (Wende Correctional Facility), Claimant has failed to state a cause of action under maritime law, the UCC or for conversion. Claimant is not a vessel in navigation, there is no connection to a maritime activity or to a maritime situs and, accordingly, no maritime jurisdiction exists (see Jerome B. Grubart, Inc. v Great Lakes Dredge & Dock Co., 513 US 527 [1995]). In addition, New York State's UCC § 1-102 (2) (a) states that the underlying purpose of the UCC is "to simplify, clarify and modernize the law governing commercial transactions." Insofar as there are no commercial transactions involved in Claimant's criminal conviction, there is no cause of action stated under the UCC. Further, conversion involves the "unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights" (see State of New York v Seventh Regiment Fund, 98 NY2d 249, 259 [2002]). The Claimant's incarceration is not a dispute over the right of ownership of "goods" and thereby does not constitute a conversion.
Claimant also attempts to assert a cause of action for fraud and for fraudulent bills of lading allegedly dated June 18, 2008. Claimant's indictment No. 2007-01196 was dated June 18, 2008 and is, thus, presumably the fraudulent "bill of lading" referred to by Claimant. UCC § 1-201 (6) defines a bill of lading as "a document evidencing the receipt of goods for shipment issued by a person engaged in the business of transporting or forwarding goods ...." An indictment is simply not a bill of lading. Furthermore, Claimant's claim does not state a cause of action for fraud. "In order to set forth a cause of action in fraud, there must be allegations of a representation of a material fact, the falsity of that representation, knowledge by the party who made the misrepresentation that it was false when made, justifiable reliance by [Claimant] and resulting injury" (Monaco v New York Univ. Med.Ctr., 213 AD2d 167, 169 [1st Dept 1995], lv dismissed and denied 86 NY2d 882 [1995]). The elements of fraud must be pled with specificity (CPLR 3016 [b]). Claimant's conclusory, speculative and often incomprehensible allegations that the judge, the ADA and his court-appointed lawyer failed to reveal during the underlying criminal proceedings that the indictment was a negotiable instrument under the UCC and that he was being prosecuted for maritime, penal and commercial crimes do not state a coherent or recognizable cause of action for fraud.
Defendant also alleges that Claimant's claim was untimely served. Pursuant to Court of Claims Act §§ 10 (3), 10 (3-b) and 11, a claim to recover damages for personal injuries caused by an unintentional or intentional act of an officer or employee of the State of New York must be filed and a copy served upon the Attorney General within 90 days of accrual of the claim, unless the Claimant shall serve within the same 90 day period, a notice of intention to file a claim, in which event the claim shall be filed and served within two years of accrual for a negligent or unintentional act or within one year of an intentional act. The requirements of Court of Claims Act §§ 10 and 11 are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to serve the Attorney General within 90 days of accrual results in a lack of jurisdiction requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]).
Here, all of Claimant's causes of action appear to arise out of the June 18, 2008 indictment, his subsequent conviction of assault, and the April 27, 2009 sentencing (see Defendant's Exhibit A). The claim and a notice of intention were served together upon the Attorney General's Office on August 4, 2015, more than six years after the claim accrued. Accordingly, the claim must be dismissed as untimely.
Finally, Defendant asserts that Claimant is attempting to avoid the jurisdictional defect of untimeliness by arguing that the accrual date is actually May 4, 2015, when his bid bond and/or performance bond was returned to him by named Defendant Oliver Young, Esq. These bonds were returned to Claimant pursuant to 7 NYCRR § 270.2 Rule 107.21 of the rules of the Department of Corrections and Community Supervision (DOCCS), which prevents an inmate from filing a lien or from recording a security interest without prior written permission of the Superintendent or by a court order authorizing such a filing. These bonds were apparently a part of Claimant's attempt to bolster his pseudo commercial law and redemption theory meandering by alleging that he is not the person named in the indictment in an attempt to get the indictment and subsequent conviction and sentence overturned. This ploy has been referred to as "pseudo-legal gibberish" (see People v Reginald Hodge, 33 Misc 3d 1212 (A) [Sup Ct, Richmond County 2011], reversed on other grounds 120 AD3d 510 [2nd Dept 2014]). Nothing done by named Defendant Oliver Young, Esq. on May 4, 2015 creates a cause of action or extends Claimant's time in which to file his claim or to appeal his criminal conviction. And in any event, this Court does not have jurisdiction to consider a motion to overturn a criminal conviction.
The Court of Claims does not have jurisdiction over the individually named Defendants. The claim is jurisdictionally defective as it was untimely served and fails to state any cause of action. Accordingly, Defendant's motion no. M- 87393 is granted and claim no. 126529 is dismissed.
December 22, 2015
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read by the Court: 1.Notice of motion and affidavit of Assistant Attorney General Wendy E. Morcio, sworn to September 1, 2015, with annexed Exhibit A; 2. Unsworn statement of Samuel R. Toliver dated November 16, 2015.