Opinion
# 2016-038-510 Claim No. 123126 Motion No. M-86532 Cross-Motion No. CM-86723
02-22-2016
JESSIE J. BARNES v. THE STATE OF NEW YORK
JESSIE J. BARNES, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Michael C. Rizzo, Assistant Attorney General
Synopsis
Claimant's motion regarding defendant's failure to produce documents in discovery granted in part, and defendant is ordered to respond to claimant's discovery demand to the extent that it has not already done so. Defendant's cross motion to dismiss the claim for failure to timely and properly serve a notice of intention to file the claim is denied following a traverse hearing, and that part of the cross motion seeking dismissal on 11 (b) grounds also denied. Cross motion granted in part and certain causes of action dismissed on various grounds.
Case information
| UID: | 2016-038-510 |
| Claimant(s): | JESSIE J. BARNES |
| Claimant short name: | BARNES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123126 |
| Motion number(s): | M-86532 |
| Cross-motion number(s): | CM-86723 |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | JESSIE J. BARNES, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Michael C. Rizzo, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 22, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, has filed this claim "for improper training and supervision retention, ministerial negligence, discrimination and negligence" by various supervisory personnel (see Verified Claim, ¶ 2). It alleges numerous incidents of misconduct by corrections staff between July 19, 2011 and November 2012 (see id., ¶¶ 2; 3-27). Claimant moves for an order precluding defendant from offering evidence at trial, and defendant cross-moves to dismiss the claim on various grounds, including the jurisdictional ground of untimely service of the claim. Claimant opposes defendant's cross motion. By decision and order dated November 10, 2015, the Court held in abeyance its decision on the motion and cross motion pending a hearing on the disputed issue of whether claimant timely served a NOI (see Barnes v State of New York, Court of Claims, Claim No. 123126, unreported decision [DeBow, J., Nov. 10, 2015]). The hearing was conducted by videoconference on December 3, 2015, with the parties appearing at Upstate Correctional Facility (CF) in Malone, New York and the Court sitting in Saratoga Springs, New York. Assistant Attorney General (AAG) Michael Rizzo testified for defendant; claimant offered his own testimony. Defendant and claimant each offered two exhibits, all of which were received into evidence.
Claimant's request by correspondence dated January 13, 2016 that the Court hold in abeyance a decision on these two motions will not be granted. Claimant's intention to make a late motion has no bearing on this pending claim and the fully submitted motions.
Defendant's Cross Motion to Dismiss
Inasmuch as defendant's cross motion to dismiss on the grounds that the NOI was not timely served may be dispositive, it will be addressed first. The claim states that a notice of intention to file a claim (NOI) was served on the Attorney General and received in that office on July 13, 2012 and November 15, 2012 (see id., ¶¶ 29, 30). AAG Rizzo testified at the hearing that he performed a physical search for the NOI allegedly served by claimant in the Claims Bureau of the Office of the Attorney General (OAG). According to his testimony, Rizzo first searched the physical file maintained by Douglas R. Kemp, the AAG who was assigned to defend the claim, and found no NOI in the file. He then searched the filing cabinets in the Claims Bureau where all original NOIs served on the OAG are kept and he found only one NOI served by claimant in 2012, which was served on January 9, 2012 and which pertained to a different claim. Rizzo searched the OAG computer database that records all mail received on claims, which reflected only the January 9, 2012 NOI (see Defendant's Exhibit A [Claim No. 109654]). In sum, he found no physical proof nor any record of a NOI being received under the claim number that was assigned to this claim (see Defendant's Exhibit B). Rizzo acknowledged that it was possible for a NOI to have been misplaced within the Attorney General's offices, and further acknowledged that his search was limited to the files of the Claims Bureau and did not include other bureaus within the OAG.
Claimant testified that on July 10, 2012, Correction Officer (CO) Wilson, the Upstate CF Law Library CO, notarized both the verification and the affidavit of service of the NOI. Claimant testified that because the NOI had to be sent the next day, he sent the NOI to the Inmate Correspondence Unit at Upstate CF along with an Authorized Advance Request form that noted that the NOI must be mailed by certified mail, return receipt requested (CMRRR). He testified that the NOI was mailed to the Attorney General by CMRRR on July 11, 2012. Claimant's exhibits include the originals of the verified NOI, the Authorized Advance Request form, and the affidavit of service to which claimant referred during his testimony, as well as a CMRRR green card that indicates receipt of certified mail number 7007 1490 0001 0386 8055 at the "Office of Legal Records" in the OAG in Albany on July 13, 2012 (see Claimant's Exhibit 2). The verification attached to the NOI and the affidavit of service were sworn to by claimant and notarized by Kenneth E. Wilson, Jr. on July 10, 2012 (see id.). Claimant's Authorized Advance Request form that is dated July 11, 2012 seeks an advance for legal mail, and it includes a notation that it must be sent by CMRRR "pursuant to §§ 10 and 11 of the Court of Claims Act" (id.). The Authorized Advance Request form indicates that the request was approved on July 11, 2012 in the amount of $7.00, which included specific amounts for postage, certified mail, and a return receipt (see id). This is consistent with claimant's Upstate CF Inmate Statement, which reflects a postage advance on July 11, 2012 in the amount of $7.00 with the note "AG" (see Claimant's Exhibit 1). Claimant's affidavit of service of the NOI indicates service upon the Attorney General "via the United States Postal Service," without reference to CMRRR (see Claimant's Exhibit 2). Claimant testified that he served another NOI by CMRRR on November 15, 2012, but that he did not have copies of the green card evidencing receipt because many of his legal papers were missing.
In viewing claimant and evaluating claimant's demeanor while he testified at the hearing, the Court finds credible his testimony that he mailed the NOI on July 11, 2012 by CMRRR, and this credible testimony is supported by the documentary evidence discussed above. Notably, the CMRRR green card receipt that was stamped received on July 13, 2012 demonstrates receipt by the OAG's Office of Legal Records and not the Claims Bureau. While the evidence fairly establishes that the OAG's Claims Bureau had no record of ever receiving the NOI for this claim, the search for the NOI was limited to the Claims Bureau, and the AAG candidly testified that the NOI could have been misplaced. Finally, and importantly, defendant offered no evidence at the hearing that could demonstrate that the envelope that was received by the OAG on July 13, 2012 contained something other than the NOI (compare Collazo v State of New York, UID No. 2015-038-548 [Ct Cl, DeBow, J., Aug. 18, 2015] [defendant adduced proof that claim allegedly sent by CMRRR was correspondence and not the claim]).
Accordingly, defendant has failed to meet its burden of establishing that claimant did not timely and properly serve a NOI prior to the filing and service of the claim. Inasmuch as defendant has not argued that the claim was untimely as to causes of action that accrued more than 90 days before the service of the NOI, i.e. before April 14, 2012 (see Court of Claims Act §§ 10 [3] and 10 [3-b]), no such causes of action will be dismissed on that ground. Further, to the extent that the claim alleges that defendant's agents acted negligently after the service of the NOI on July 13, 2012 (id., ¶¶ 20, 26, 27), defendant does not argue that any such cause of action is not properly before the Court. In sum, defendant's cross motion to dismiss the claim on the jurisdictional basis of untimeliness will be denied.
Turning to the other grounds for dismissal asserted in the cross motion, defendant argues that the portion of the claim asserting a violation of claimant's rights to free exercise of his religion due to being placed on a restricted diet during the month of Ramadan (see id., ¶ 20) should be dismissed. "In light of the remedies provided for in [Correction Law] section 610 [entitling inmates the right to free exercise of religion], Court of Claims decisions have uniformly rejected constitutional tort damage claims premised on violations of a prisoner's free exercise right" (Hernandez v State of New York, UID No. 2012-049-064 [Ct Cl, Weinstein, J., Dec. 10, 2012]). Claimant offers no argument in opposition, and any cause of action based upon claimant's constitutional right to free exercise of religion will be dismissed.
Defendant contends that the allegations concerning the issuance of a false misbehavior report on April 15, 2012 (see Verified Claim, ¶ 6) fail to state a valid claim, and are untimely under the Court of Claims Act. Claimant makes no argument in opposition.
On a motion to dismiss for failure to state a cause of action: "claimant's claim is liberally construed and all facts asserted therein, as well as its submissions in opposition to defendant's motion, are accepted as true (see CPLR 3026; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; see also Nonnon v City of New York, 9 NY3d 825, 827 [2007]; State of New York v Shaw Contract Flooring Servs., Inc., 49 AD3d 1078, 1079 [2008]). Where, as here, the motion is premised upon claimant's failure to state a claim (see CPLR 3211[a][7]) . . . the dispositive inquiry is whether it has a cause of action and not whether one has been stated, i.e., 'whether the facts as alleged fit within any cognizable legal theory' (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; accord Nonnon v City of New York, 9 NY3d at 827)."
(IMS Engrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [3d Dept 2008], lv denied 11 NY3d 706 [2008]). The claim alleges without elaboration that on April 15, 2012, CO Garrison filed a false inmate misbehavior report (see Verified Claim, ¶ 6). Inasmuch as the claim does not include any allegation of how claimant was injured or otherwise damaged by the allegedly false misbehavior report, it fails to state an essential element of a tort cause of action (see Campbell v State of New York, UID No. 2014-038-101 [Ct Cl, DeBow, J., Feb. 7, 2014] [reciting the elements of a tort cause of action, including that the claimant sustained an injury proximately caused by the alleged tortious conduct]). Thus, any such cause of action must be dismissed.
Construing this claim in the liberal manner required on a motion to dismiss, and to the extent that the claim may be read to allege an injury sustained as a result of the filing of a false inmate misbehavior report, the allegations do not support a cognizable cause of action arising from that alleged misconduct. "New York does not recognize a common-law cause of action to recover damages for [the intentional tort of] harassment" (Monreal v New York State Dept. of Health, 38 AD3d 1118, 1119 [3d Dept 2007], quoting Daulat v Helms Bros., Inc., 18 AD3d 802, 803 [2d Dept 2005]; Broadway Cent. Prop. v 682 Tenant Corp., 298 AD2d 253, 254 [1st Dept 2002]), and it is well-settled that claims against the State of New York for intentional infliction of emotional distress are barred as a matter of public policy (see Brown v State of New York, 125 AD2d 750, 752 [3d Dept 1986], appeal dismissed 70 NY2d 747 [1987]). Any cause of action sounding in negligent training, supervision and training with regard to CO Garrison's conduct would "require allegation that the defendant knew or should have known of its employee's propensity to engage in the conduct that caused the plaintiff's injuries, and that the alleged negligent supervision or retention was a proximate cause of those injuries" (Gray v Schenectady City School Dist., 86 AD3d 771, 773 [3d Dept 2011]). This claim is bereft of any such allegations and thus it fails to state a cause of action for negligent training, supervision and retention. Finally, to the extent that the allegations may be construed as asserting a course of action for defamation, "it does not set forth the allegedly defamatory statement with sufficient particularity to satisfy the requirement of CPLR 3016 (a)" (Martin v Hayes, 105 AD3d 1291, 1293 [3d Dept 2013]; see Matter of La Barbera v Town of Woodstock, 29 AD3d 1054, 1057 [3d Dept 2006]). For all of these reasons, and in the absence of argument from claimant on the vitality of any cause of action arising from the issuance of a false misbehavior report, any such cause of action will be dismissed.
Defendant next argues that to the extent that claimant is seeking compensation for the destruction of legal papers in connection with the alleged false misbehavior report, any such cause of action should be dismissed as jurisdictionally defective because the claim does not assert that claimant exhausted his administrative remedies (see Kairis v State of New York,
UID No. 2015-029-036 [Ct Cl, Mignano, J., May 15, 2015]). Claimant has not submitted any opposing argument to this meritorious contention.
Defendant seeks dismissal of the allegation that a CO intentionally injured claimant's hand on June 14, 2012 on the ground that it was not brought within the one-year statue of limitations in CPLR 215 (3). "[T]hose seeking to sue the State . . . must, in addition to meeting the jurisdictional time limits contained in section 10 . . . of the Court of Claims Act, comply with [statutes of limitations in article 2 of the CPLR] or risk having their claim dismissed if a timely Statute of Limitations defense is raised" (Trayer v State of New York, 90 AD2d 263, 268 [3d Dept 1982]; see also NY Const, art III, § 19 ["No claim against the state shall be . . . paid which, as between citizens of the state, would be barred by the lapse of time"]). This defense is adequately stated in defendant's answer (see Answer, Fourth Defense, ¶ NINTH); Immediate v St. John's Queens Hosp., 48 NY2d 671, 673 [1979]; see also DeSanctis v Laudeman, 169 AD2d 1026 [3d Dept 1991]), and defendant has borne its burden of establishing prima facie that the statute of limitations has elapsed, having demonstrated that the claim was served on September 26, 2013 (see Kemp Affirmation, Exhibit A), more than one year after the June 14, 2012 accrual date. This shifts to claimant the burden to aver evidentiary facts demonstrating that an exception to the statutory period applies (see Siegel v Wank, 183 AD2d 158, 159 [3d Dept 1992]), which claimant has not borne, having offered no facts or arguments in opposition to this part of defendant's cross motion. Thus, claimant's cause of action sounding in battery will be dismissed as untimely pursuant to CPLR § 215 (3).
Finally, defendant seeks dismissal of that portion of the claim that alleges that claimant was denied a razor for a period of 16 months commencing on July 19, 2011 (see Verified Claim, ¶ 25) on the ground that it is jurisdictionally defective because the claim does not sufficiently "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 . . . the total sum claimed" (Court of Claims Act § 11 [b] [emphasis added]). These pleading requirements in the Court of Claims Act are substantive conditions on the State's waiver of sovereign immunity that must be strictly construed (see Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003]), and failure to comply with the pleading requirements is a jurisdictional defect that requires dismissal of the claim (see id., at 209; Kolnacki v State of New York, 8 NY3d 277, 281 [2007]). To satisfy Court of Claims Act § 11 (b), "substantial compliance," not "absolute exactness" is required (see Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). The facts set forth in the claim must be sufficiently definite " 'to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances' " (Lepkowski, 1 NY3d at 207, quoting Heisler v State of New York, at 767 ). Defendant's argument that the claim does not state an accrual date for these allegations is without merit, as the claim clearly states that the cause of action accrued on July 19, 2011, and continued for 16 months. These facts are "specific enough so as not to mislead, deceive or prejudice the rights of the State" (Heisler v State of New York, at 767), and are stated with sufficient particularity to enable defendant to investigate the allegations and ascertain its liability, and thus, the pleading substantially complies with Court of Claims Act § 11 (b). Accordingly, these allegations survive defendant's cross motion to dismiss.
Claimant's Motion to Preclude
Claimant's motion seeks an order precluding defendant from offering evidence at trial on the ground that defendant had failed to comply with a discovery demand. Specifically, claimant avers that he served a document demand on October 1, 2014, and having received no response, mailed follow-up correspondence to defendant in a good faith effort to resolve any dispute prior to the making of this motion (see Barnes Affidavit, ¶¶ 4,5). Claimant further avers that the Assistant Attorney General (AAG) assigned to defend the claim mailed a letter to claimant on January 15, 2015 stating that defendant had received the demand and would provide a response "shortly" (id., ¶ 6). Having received no further response, claimant made this motion on March 19, 2015, approximately two months after the AAG's correspondence. He argues that defendant has "wholly failed and neglected to comply with [his] demands" (id., ¶ 8), and that defendant had deliberately failed to produce the material sought in his demands. Defendant's cross motion contains no arguments in opposition to claimant's motion, nor has defendant submitted any papers in direct opposition to claimant's motion.
Sanctions - including the preclusion of evidence at trial - may be imposed when a party wilfully fails to disclose information that the Court finds ought to have been disclosed (see CPLR § 3126 [2]). However, and despite his contention that defendant's failure to respond to his discovery demand is deliberate, claimant has not offered factual support for that contention, nor has he otherwise demonstrated a pattern of dilatory conduct by defendant that would support an inference of willful nondisclosure or otherwise warrant the imposition of sanctions (compare Green v State of New York, UID No. 2011-044-512 [Ct Cl, Schaewe, J., March 17, 2011]). Accordingly, and although the Court does not countenance the failure of defendant to timely respond to claimant's discovery demand, claimant's request for preclusion will not be granted. However, to the extent that defendant has yet to respond to claimant's October 1, 2014 discovery demand, the Court will exercise its discretion to order defendant to do so within twenty days of the filing of this Decision and Order.
Accordingly, it is
ORDERED, that claimant's motion M-86532 is GRANTED IN PART, to the extent that defendant is directed to respond to claimant's October 1, 2014 discovery demand, if it has not already done so, within twenty (20) days of the filing of this decision and order; and it is further
ORDERED, that claimant's motion M-86532 is DENIED in all other respects; and it is further
ORDERED, that defendant's cross motion CM-86723 is GRANTED IN PART, to the extent that:
(1) any cause of action asserting violations of claimant's right to free exercise of religion (see Claim No. 123126, ¶ 20) is DISMISSED;
(2) any causes of action based upon the allegation that CO Garrison issued a false misbehavior report on April 15, 2012 (id., ¶6) is DISMISSED;
(3) any cause of action seeking compensation for the alleged destruction of claimant's legal papers on April 15, 2012 (id.) is DISMISSED;
(4) any cause of action alleging a battery occurred on June 14, 2012 is DISMISSED; and it is further
ORDERED, that defendant's cross motion CM-86723 is DENIED in all other respects.
February 22, 2016
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Verified Claim, filed August 20, 2013; (2) Verified Answer, filed November 1, 2013; (3) Notice of Motion, dated March 19, 2015; (4) Affidavit of Jessie J. Barnes, sworn to March 19, 2015, with Exhibits A-D; (5) Affidavit of Service of Jessie J. Barnes, sworn to March 19, 2015; (6) Correspondence of Jessie J. Barnes, received April 15, 2015, with Appendices; (7) Notice of Cross Motion to Dismiss, dated May 20, 2015,; (8) Affirmation of Douglas R. Kemp, AAG, in Support of Cross Motion to Dismiss, dated May 20, 2015, with Exhibits A-B; (9) Affidavit of Jessie J. Barnes in Opposition to Defendant's Cross Motion to Dismiss, sworn to July 8, 2015, with Exhibits A-F; (10) Decision and Order in Barnes v State of New York, Court of Claims, Claim No. 123126, unreported decision [DeBow, J., Nov. 10, 2015]; (11) Claimant's Exhibits 1-2 and Defendant's Exhibits A-B received at Hearing on Barnes v State of New York, Claim No. 123126, Motion Nos. M-86532 and CM-86723, conducted on December 3, 2015.