Opinion
# 2015-048-167 Claim No. 124489 Motion No. M-85353
01-15-2015
CARLOS ABREU v. STATE OF NEW YORK
CARLOS ABREU, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Paul F. Cagino, Esq. Assistant Attorney General
Synopsis
The Court granted Defendant's motion to dismiss the Claim, insofar as it alleged torts based on constitutional violations, the intentional infliction of emotional distress, and acts occurring prior to March 2014, and otherwise denied Defendant's motion.
Case information
UID: | 2015-048-167 |
Claimant(s): | CARLOS ABREU |
Claimant short name: | ABREU |
Footnote (claimant name) : | |
Defendant(s): | STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 124489 |
Motion number(s): | M-85353 |
Cross-motion number(s): | |
Judge: | GLEN T. BRUENING |
Claimant's attorney: | CARLOS ABREU, Pro Se |
Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Paul F. Cagino, Esq. Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | January 15, 2015 |
City: | Albany |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Claimant filed this Claim to recover damages for a variety of allegedly improper actions committed by Defendant during March 2014 while he was a patient at the Central New York Psychiatric Center (CNYPC) located in Marcy, New York, and then subsequently while he was an inmate under the supervision of the Department of Corrections and Community Supervision (DOCCS). Defendant now moves to dismiss the Claim. Claimant opposes the motion.
In support of its motion, Defendant argues that: 1) the Claim fails to satisfy the pleading requirements of Court of Claims Act § 11 (b); 2) the allegations of wrongdoing occurring prior to March 2014 are untimely; and 3) the causes of action alleging constitutional violations and the intentional infliction of emotional distress are barred.
The Claim consists of 88 handwritten pages, separated out into 142 paragraphs. The Claim is voluminous, providing a lengthy history of Claimant's prior incarceration, his residency at the CNYPC occurring between January 2014 and March 2014, and then his subsequent re-incarceration. Based on the Court's liberal reading of the Claim, it appears that the Claim's allegations focus on his residency at the CNYPC and his subsequent re-incarceration, during which time Claimant alleges, among other things, that he was improperly denied access to his legal papers (see Claim, pages 29-32), that he was denied timely and appropriate medical treatment for a fractured hand (see Claim, pages 32-36), that he was subjected to cruel and unusual punishment, in that he was left in a "side room" from March 4, 2014 through March 20, 2014, without the ability to complete certain basic self-care tasks (see Claim, pages 36-43, 62-64), that Defendant sent him back to prison in retaliation for making complaints (see Claim, pages 43-54) and that, while subsequently confined at Auburn Correctional Facility, Claimant was wrongfully confined in the Special Housing Unit and was issued a false misbehavior report (see Claim, pages 56-60, 65).
Court of Claims Act § 11 (b) requires, in relevant part, that "[t]he claim shall state the time when and place where such claim arose, the nature of same, the items of damage 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." Section 11 (b) also requires that the same information be set forth in a Notice of Intention, excepting the items of damage or injuries. All of the requirements in section 11 (b) are "substantive conditions upon the State's waiver of sovereign immunity" (Lepkowski v State of New York, 1 NY3d 201, 207 [2003]), and a Claimant's failure to comply with those statutory provisions renders the Claim jurisdictionally defective (see Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007]). The "guiding principle" of Section 11 (b) is "to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances" (Lepkowski v State of New York, 1 NY3d at 207 [internal quotation marks and citations omitted]). The Court finds that the Claim in this matter, while lengthy, satisfies the requirements of Court of Claims Act § 11 (b).
Defendant's timeliness objection was preserved through its pre-answer motion to dismiss. Whether characterized as a Claim for an intentional tort or an unintentional tort, Court of Claims Act § 11 (a) (i) mandates that a copy of the Claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the applicable time period provided in Section 10 of the Court of Claims Act. Court of Claims Act § 10 (3) and § 10 (3-b), applicable to unintentional and intentional torts, respectively, mandate that a claim be filed and served within 90 days of accrual, unless the claimant serves upon the Attorney General a Notice of Intention to File a Claim, in which event a claim for negligence shall be filed and served upon the Attorney General within two years after accrual of the claim, and a claim alleging intentional torts shall be filed and served upon the attorney general within one year after the accrual of the claim. Failure to timely serve the Attorney General with the Notice of Intention, or to timely file and serve the Claim, divests the Court of subject matter jurisdiction (see Alston v State of New York, 97 NY2d 159, 164 [2001]; Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]). No Notice of Intention to file a Claim was served in this matter. The Claim was filed on June 6, 2014, thus rendering untimely any causes of action accruing prior to March 8, 2014.
To the extent that the Claim asserts State constitutional violations, the Court agrees with Defendant that such claims are barred where, as here, Claimant has an alternative legal remedy (see Deleon v State of New York, 64 AD3d 840, 840-841 [3d Dept 2009], lv denied 13 NY3d 712 [2009]). Likewise, to the extent the Claim alleges violations of Claimant's rights under the Federal Constitution, those claims are beyond the jurisdiction of the Court of Claims (see Carver v State of New York, 79 AD3d 1393, 1395 [3d Dept 2010], lv denied 17 NY3d 707 [2011]). To the extent that the Claim can be read to assert a cause of action for the intentional infliction of emotional distress (see Claim, Wherefore Clause), public policy prohibits such claims against the State (see Brown v State of New York, 125 AD2d 750, 752 [3d Dept 1986], appeal dismissed 70 NY2d 747 [1987]).
Accordingly, Defendant's Motion No. M-85353 is granted only to the extent that: 1) any causes of action accruing prior to March 8, 2014 are dismissed as untimely; 2) any causes of action alleging State and Federal Constitutional violations are dismissed; and 3) any causes of action alleging the intentional infliction of emotional distress are dismissed, and Defendant's motion is otherwise denied.
January 15, 2015
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claim, filed June 6, 2014;
Notice of Motion, filed July 7, 2014;
Affirmation of Paul F. Cagino, Esq., dated July 3, 2014, with Exhibit A;
Correspondence from Claimant, received July 28, 2014, with attachment;
Correspondence from Claimant, received October 22, 2014, with attachment.