Opinion
# 2019-040-016 Claim No. NONE Motion No. M-93052
02-14-2019
TYRONE CANNON, Din: 14B0118 v. STATE OF NEW YORK
Tyrone Cannon, 14B0118, Pro Se LETITIA JAMES Attorney General of the State of New York By: Bernard F. Sheehan, Esq., AAG
Synopsis
Movant's application to serve and file a Claim late pursuant to CCA § 10(6) denied.
Case information
| UID: | 2019-040-016 |
| Claimant(s): | TYRONE CANNON, Din: 14B0118 |
| Claimant short name: | CANNON |
| 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-93052 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. MCARTHY |
| Claimant's attorney: | Tyrone Cannon, 14B0118, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Bernard F. Sheehan, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | February 14, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the application of pro se Movant, Tyrone Cannon, to serve and file a late claim pursuant to Court of Claims Act § 10(6) is denied.
In his proposed Claim attached to his Motion papers, Movant asserts that he is incarcerated at Orleans Correctional Facility (hereinafter, "Orleans"). He further asserts that he was a participant in a Work Release Program and had a job at a milk plant, however, he was laid off from the position due to physical limitations he has (proposed Claim, ¶ 3). Movant states that he searched for another job for weeks but had no luck (id., ¶ 4). On December 28, 2016, a Temporary Release Committee (hereinafter, "TRC") Hearing was held where the TRC found that Movant had been unemployed since October 26, 2016 and that his adjustment to temporary release was poor, therefore, his removal from the Temporary Release Program was recommended (id., ¶ 4, and Ex. C attached to Motion). The Superintendent of the facility approved the determination on January 3, 2017, Movant was removed from the program, and was transferred to Orleans (id., ¶ 4, and Ex. C attached to Motion). Movant asserts that he appealed the determination. Movant was advised by correspondence dated June 8, 2018, that, on June 2, 2018, the decision of the TRC was affirmed as Movant was "found medically unsuitable for work release program" (id., ¶ 7, and Ex. F attached to Motion). The Claim asserts that Defendant: (1) is negligent in improperly imprisoning Movant by revoking his temporary release; (2) has intentionally inflicted emotional distress upon Movant; (3) has discriminated against Movant under the Americans with Disabilities Act (hereinafter, "ADA") due to his disability; and (4) has violated the Federal and New York State Constitutions (id., ¶¶ 2, 7).
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. Since the proposed Claim asserts a cause of action for negligence and for constitutional tort (CPLR § 214[5], a three-year Statute of Limitations), and a cause of action for intentional tort (CPLR § 215[3], a one-year Statute of Limitations), it appears that the proposed Claim is timely made as it appears that the Claim accrued on June 8, 2018 when Movant's appeal was decided (proposed Claim, ¶ 7).
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
Perhaps the most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 [2011], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
Correction Law § 855(9) provides as follows:
Participation in a temporary release program shall be a privilege. Nothing contained in this article may be construed to confer upon any inmate the right to participate, or to continue to participate, in a temporary release program. The superintendent of the institution may at any time, and upon recommendation of the temporary release committee or of the commissioner or of the chairman of the state board of parole or his designee shall, revoke any inmate's privilege to participate in a program of temporary release in accordance with regulations promulgated by the commissioner.
As participation in a temporary release program is a privilege and not a right, it has been held that the "removal of an inmate from participation in a work release program does not constitute 'a violation of any cognizable legal right' " (Sanders v State of New York, UID No. 2005-015-516 [Ct Cl, Collins, J., June 14, 2005], quoting People ex rel. Feliciano v Waters, 99 AD2d 850, 850 [2d Dept 1984]; see Scott v State of New York, UID No. 2005-009-060 [Ct Cl, Midey, J., Nov. 29, 2005]). Therefore, the Court finds and concludes that the proposed cause of action alleging negligence in revoking Movant's temporary release lacks the appearance of merit.
Movant's proposed cause of action asserting intentional infliction of emotional distress lacks the appearance of merit as such causes of action against governmental entities are barred as a matter of public policy (Moore v Melesky, 14 AD3d 757, 761 [3d Dept 2005]; Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]; Brown v State of New York, 125 AD2d 750, 752 [3d Dept 1986], lv dismissed 70 NY2d 747 [1987]).
The Court now turns to Movant's proposed cause of action that Defendant has discriminated against Movant, under the ADA, due to his disability. Assuming, arguendo, that such a claim may be asserted against the State in the Court of Claims (see Carlson v State of New York, 34 Misc 3d 242 [Ct Cl 2011]), to bring a cause of action under the anti-discrimination provision of Title II of the ADA, Movant must establish that "(1) he is a qualified individual with a disability; (2) [he] is being excluded from participation in, or being denied benefits of some service, program or activity by reason of his disability; and (3) the entity providing the service is a public entity" (Dimperio v New York State Dept. of Corrections and Community Supervision, 2015 WL 1383831, *5 [NDNY 2015]). Here, Movant has failed to establish what his disability is or that he is a qualified individual with a disability pursuant to the ADA. Therefore, the Court finds and concludes that this proposed cause of action lacks the appearance of merit.
To the extent that Movant's allegations assert deprivations under the Federal Constitution, no action may be maintained in this Court against the State for alleged Federal constitutional violations (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1151 [3d Dept 2009]; Lyles v State of New York, 194 Misc 2d 32, 35-36 [Ct Cl 2002], affd 2 AD3d 694, 696 [2d Dept 2003], affd on other grounds 3 NY3d 396 [2004]; Matter of Thomas v New York Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723 [3d Dept 1981], affd 56 NY2d 656 [1982]). To the extent that Movant asserts Federal constitutional violations, his remedy lies elsewhere.
In Brown v State of New York (89 NY2d 172 [1996]), the Court of Appeals "recognized that, when certain requirements are met, a violation of the [New York State] Constitution may give rise to a private cause of action" (Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; see Wagoner v State of New York, UID No. 2008-029-014 [Ct Cl, Mignano, J., Apr. 2, 2008]). In Martinez v City of Schenectady (97 NY2d 78 [2001]), however, the Court of Appeals made it clear that Brown establishes a "narrow remedy," applicable in cases where no other remedy is feasible to provide citizens with "an avenue of redress" when their private interests have been harmed by constitutional violations (Martinez v City of Schenectady, supra at 83; Waxter v State of New York, supra at 1181). Where an adequate remedy could be provided, however, " 'a constitutional tort claim … is [not] necessary to effectuate the purposes of the State constitutional protections … [invoked] nor appropriate to ensure full realization of [claimants'] rights' " (Bullard v State of New York, 307 AD2d 676, 679 [3d Dept 2003], quoting Martinez v City of Schenectady, supra at 83).
In the present case, recognition of the State constitutional cause of action is neither necessary nor appropriate to ensure the full realization of Movant's rights, because the alleged wrongs could have been redressed by an alternative remedy, namely, either in a Federal Court action asserting violations of the Federal Constitution, and/or violations of the ADA. In addition, Movant could have brought a CPLR Article 78 proceeding in State Supreme Court regarding his concerns over being removed from the Work Release Program (see Matter of Lapetina v Fischer, 76 AD3d 722 [3d Dept 2010]; Matter of Wiggins v Joy, 46 AD3d 1035 [3d Dept 2007]; Matter of Collins v Goord, 24 AD3d 1048 [3d Dept 2005]; Greig v Joy, 21 AD3d 615 [3d Dept 2005]; Matter of Martin v Goord, 305 AD2d 899, 900 [3d Dept 2003], lv denied 100 NY2d 510 [2003]).
Thus, the Court finds and concludes that the proposed Claim lacks the appearance of merit. Accordingly, the Motion is denied without prejudice.
February 14, 2019
Albany, New York
CHRISTOPHER J. MCARTHY
Judge of the Court of Claims The following papers were read and considered on Movant's application for permission to file a late claim: Papers Numbered Notice of Motion, Motion for Permission to File a Late Claim & Exhibits Attached 1 Affirmation in Opposition 2