Opinion
# 2017-040-147 Claim No. 128597 Motion No. M-90921
12-13-2017
NAKIA CHANEY v. THE STATE OF NEW YORK
Nakia Chaney, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG
Synopsis
State's Motion to Dismiss for lack of subject matter jurisdiction granted.
Case information
| UID: | 2017-040-147 |
| Claimant(s): | NAKIA CHANEY |
| Claimant short name: | CHANEY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128597 |
| Motion number(s): | M-90921 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Nakia Chaney, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | December 13, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the State's Motion to dismiss one cause of action of the Claim as premature and, thus, the Court lacks subject matter jurisdiction over it, and the other cause of action for lack of subject matter jurisdiction as untimely served and filed, is granted.
This pro se Claim, which was filed with the office of the Clerk of the Court on September 26, 2016, alleges that Claimant was an inmate at Mid-State Correctional Facility in 2016, when his religious rights to practice his faith were violated by Defendant. Claimant alleges that he was denied his religious freedom to participate in Ramadan services because, by the time he finished his work assignment, there were only about 15 minutes of services left each day (Claim, Point One). Claimant alleges that his religious rights under the Federal Constitution, the New York State Constitution, and Correction Law § 610 were denied.
Claimant alleges as a second cause of action (Claim, Point Two), that he was unlawfully imprisoned until September 29, 2016 because Defendant did not credit him with the proper amount of jail time credit and with the result that it did not release him from custody on May 6, 2016. He asserts he was unlawfully imprisoned from May 6, 2016 until September 29, 2016.
Exclusive jurisdiction for a cause of action asserting violations of Claimant's right to religious freedom rests in Supreme Court, not the Court of Claims. As succinctly stated by Judge Francis T. Collins in Zaire v State of New York, UID No. 2015-015-050 (Ct Cl, Collins, J., Apr. 22, 2015):
With regard to the instant matter, as noted by the Court of Appeals in Matter of Rivera [v Smith, 63 NY2d 501, 510-511 (1984)], the right to the free exercise of religion has been extended to inmates pursuant to Correction Law § 610 (1) (see also Matter of Cancel v Goord, 278 AD2d 321, 322 [2d Dept 2000][, lv denied 96 NY2d 707 (2001)]; Jackson v Coughlin, 204 AD2d 939 [3d Dept 1994]). The statutory remedy for violations is limited, however, to "proceedings in the supreme court of the district where such institution is situated, which is hereby authorized and empowered to enforce the provisions of this section" (Correction Law § 610 [3]). Given the alternative avenue of redress available pursuant to the Correction Law, the Court does not find that an action for money damages in the Court of Claims is necessary to ensure the full realization of [C]laimant's constitutional rights.
(see also Powell v State of New York [UID No. 2014-032-014 (Ct Cl, Hard, J., Apr. 25, 2014) [to the extent Claimant may be asserting a cause of action for violation of Correction Law § 610(1), the Court of Claims has no jurisdiction and such a cause of action must be dismissed]]).
To the extent that Claimant'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 Claimant 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 Claimant'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, or in an action pursuant to Correction Law § 610 in Supreme Court, Oneida County, which is the county where Mid-State Correctional Facility is located. Thus, the cause of action alleging violations of Claimant's State constitutional rights is dismissed.
The Court concludes that the State has established that it lacks jurisdiction over the subject matter of the first cause of action of the Claim and, thus, the Motion to dismiss on the basis of CPLR 3211(a)(2) is granted.
The Court now turns to that portion of Defendant's Motion that seeks to dismiss the second cause of action (Claim, Point Two) on the basis that the Claim was improperly and untimely served upon Defendant. Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim (to the extent Claimant asserts injuries caused by negligence or unintentional torts) or within one year (to the extent he asserts intentional torts of State employees) (Court of Claims Act §§ 10[3], 10[3-b]; Matter of Kairis v State of New York, 113 AD3d 942 [3d Dept 2014]). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual.
It is well established that a claim for false imprisonment/wrongful confinement accrues upon release from confinement (Campos v State of New York, 139 AD3d 1276 [3d Dept 2016]; Matter of Kairis v State of New York, supra). Claimant asserts that his Claim accrued on September 29, 2016 (see Claim, ¶ 4; Claimant's Response to Defendant's Motion to Dismiss [hereinafter, "Claimant's Response"], ¶ 2).
Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in Section 10 of the Court of Claims Act, either personally or by certified mail, return receipt requested. The statute further provides that service by certified mail, return receipt requested, is not complete until the Claim or Notice of Intention to File a Claim is received by the Attorney General. It is well established that failure to properly and/or timely serve the Attorney General in strict compliance with Court of Claims Act §§ 10 and 11 gives rise to a jurisdictional defect (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]).
Pursuant to Court of Claims Act § 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense, either by motion to dismiss prior to service of the responsive pleading or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
In its Answer, filed with the office of the Clerk of the Court on November 3, 2016, Defendant asserted as its First Affirmative Defense that "[t]his Court lacks personal jurisdiction over the [D]efendant, the State of New York, and subject matter jurisdiction over the [C]laim, as the [C]laim was not served in compliance with Section 11 (a) of the Court of Claims Act in that the [C]laim was delivered by ordinary mail instead of served personally or by certified mail, return receipt requested" and, as its Fourth Affirmative Defense, that "[t]his Court lacks subject matter jurisdiction over the [C]laim and personal jurisdiction over the [D]efendant, the State of New York, as the [C]laim is untimely in that neither the [C]laim nor a [N]otice of [I]ntention was served within ninety (90) days of the accrual of the [C]laim as required by Court of Claims Act [§] 11 [and] Court of Claims Act [§§] 10(3-a) and 10 (3-b)."
In his affirmation submitted in support of Defendant's Motion, Defense counsel asserts that, on August 2, 2016, Claimant served a Notice of Intention to File a Claim upon the Attorney General by certified mail, return receipt requested (Affirmation of Sean B. Virkler, Esq., Assistant Attorney General [hereinafter, "Virkler Affirmation"], ¶ 4 and Ex. A attached). Counsel further asserts that, on October 3, 2016, Claimant served the Claim upon the Attorney General by regular mail (id., ¶ 5 and Ex. C attached thereto). In reviewing Exhibit C, which includes a photocopy of the envelope in which the Claim purportedly was mailed, the Court notes that the postage amounted to $ 1.99 and that there is no certified mail or return receipt sticker affixed to either the front or the back of the envelope. In the alternative, Defendant asserts that the Claim should be dismissed as premature, as the Claim was filed with the Court on September 26, 2016, prior to the accrual date of the false imprisonment cause of action (September 29, 2016) (Virkler Affirmation, ¶ 15).
In opposition to the Motion, Claimant agrees with Defendant that his cause of action for false imprisonment accrued on September 29, 2016. He further asserts that he re-served the Claim upon Defendant properly, within one year from the date of accrual, and the State's Motion should be denied (Claimant's Response, ¶¶ 3, 7). Claimant states that, if the Court grants Defendant's Motion to dismiss, the Court should grant him permission to file a Claim late pursuant to Court of Claims Act § 10(6), or consider the Notice of Intention to be the Claim (Court of Claims Act § 8[a]) (Claimant's Response, ¶¶ 9, 25).
The Court finds, based upon a review of the papers submitted, that Claimant's Notice of Intention and Claim suffer from a number of challenges. First, the Notice of Intention was served prematurely with regard to the false imprisonment cause of action. As asserted by Defendant and conceded by Claimant, the false imprisonment cause of action accrued on September 29, 2016, when Claimant was released from prison. The Notice of Intention was served on Defendant on August 2, 2016. As the Notice of Intention was served prior to accrual of that cause of action, it did not serve to extend Claimant's time to serve and file the Claim to one year after accrual, as asserted by Claimant (see Claimant's Response, ¶¶ 7, 10, 21). Thus, Claimant's re-service of the Notice of Intention and Claim upon Defendant on August 10, 2017 was untimely because they were not served within 90 days of the Claim's accrual (Court of Claims Act §§ 10[3], 10[3-b]). In addition, the Claim was filed with the Clerk of the Court on September 26, 2016, while Claimant still was incarcerated. Thus, the cause of action for false imprisonment had not yet accrued and the Claim also was filed prematurely. Further, as set forth above, Claimant served the Claim upon Defendant by regular mail on October 3, 2016, which is not a proper method of service.
The failure to properly serve the Attorney General gives rise to a defect in jurisdiction, which, if not raised with particularity, is subject to the waiver provisions of Court of Claims Act § 11(c) (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]; Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
Compliance with the provisions of Sections 10 and 11 of the Court of Claims Act with respect to the timeliness of filing and service requirements applicable to claims and notices of intention to file claims constitute jurisdictional prerequisites to the institution and maintenance of a claim against the State and, thus, must be strictly construed (Lyles v State of New York, 3 NY3d 396, 400-401 [2004]; Buckles v State of New York, 221 NY 418 [1917]; Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Mallory v State of New York, 196 AD2d 925, 926 [3d Dept 1993]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], appeal denied 64 NY2d 607 [1985]). The Court cannot waive a defect in jurisdiction that has been timely raised (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). The defects asserted were timely and properly raised with particularity in the Defendant's Verified Answer as set forth above, in accordance with Court of Claims Act § 11(c) (Czynski v State of New York, 53 AD3d 881, 882 [3d Dept 2008], lv denied 11 NY3d 715 [2009]; Villa v State of New York, 228 AD2d 930, 931 [3d Dept 1996], lv denied 88 NY2d 815 [1996]). Thus, the cause of action alleging false imprisonment also is dismissed.
Therefore, as set forth above, the State's Motion to dismiss the Claim is granted.
The Court now turns to Claimant's request to consider the Notice of Intention a Claim (Court of Claims Act § 10 [8(a)]) or, in the alternative, for permission to serve and file a Claim late (Court of Claims Act § 10[6]). CPLR 2215 provides, as pertinent herein, that:
At least three days prior to the time at which the motion is noticed to be heard, or seven days prior to such time if demand is properly made pursuant to subdivision (b) of rule 2214, a party may serve upon the moving party a notice of cross-motion demanding relief, with or without supporting papers; provided, however, that:
(a) if such notice and any supporting papers are served by mailing, as provided in paragraphs two of subdivision (b) of rule 2103, they shall be served three days earlier than as prescribed in this rule; …
Here, Claimant timely served a response to the State's Motion to dismiss and, in that response, requested the relief mentioned above. However, he did not include a Notice of Cross- Motion demanding relief as required by CPLR 2215(a), putting Defendant on notice that he was seeking relief (see also Uniform Rules for the Court of Claims § 206.8[a] [no motion shall be filed with the Court unless a Notice of motion is served and filed with the Motion papers]). Therefore, Claimant has not complied with either the CPLR requirements or the Uniform Rules for the Court of Claims and the Court lacks jurisdiction to grant such relief (Vanek v Mercy Hosp., 135 AD2d 707 [2d Dept 1987]; J.A. Valenti Elec. Co. v Power Line Constructors, 123 AD2d 604 [2d Dept 1986]; see Smith v State of New York, UID No. 2017-040-120 [Ct Cl, McCarthy, J., Sep. 11, 2017]). Assuming, arguendo, that Claimant had properly noticed his cross-motion, it would be denied.
First, Claimant's request to consider the Notice of Intention a Claim (Court of Claims Act §10 [8(a)]) is denied. As stated above, it was served prior to the accrual date of the cause of action for false imprisonment. In addition, the Notice of Intention does not contain the proper accrual date for the false imprisonment cause of action.
Second, turning to Claimant's request that he be granted permission to serve and file the Claim late, pursuant to Court of Claims Act § 10(6), that request is also denied. Court of Claims Act § 10(6) contains two preliminary requirements that must be satisfied in order for the Court to review the six enumerated factors set forth in the statute. The first is that the underlying CPLR statute of limitations for asserting a like claim against a citizen of New York State has not yet expired. Claimant asserts a cause of action for false imprisonment, predicated on either intentional conduct (CPLR § 215[3], a one-year Statute of Limitations), or negligent conduct (CPLR § 214[5], a three-year Statute of Limitations). Claimant asserts that the cause of action accrued on September 29, 2016, when he was released from custody. The Court concludes that, based upon the information provided in the proposed Claim, the statute of limitations had not yet expired as to this cause of action when Claimant made the request under either an intentional tort or a negligence theory.
The second requirement is that "[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application" (Court of Claims Act § 10[6]). The failure to satisfy this prerequisite is a basis, in and of itself, for denial of the Motion (Davis v State of New York, 28 AD2d 609 [3d Dept 1967]; Ballard v State of New York, UID No. 2017-040-087 [Ct Cl, McCarthy, J., Jul. 10, 2017]; Nestel v State of New York, Claim No. None, Motion No. M-71607 [Ct Cl, Mignano, J., May 31, 2006]; Harrell v State of New York, UID No. 2003-005-511 [Ct Cl, Corbett, J., April 3, 2003]). Here, Claimant has not submitted a proposed Claim. On this basis, the Motion for Permission to File a Late Claim is denied. Even if the Court were to consider the filed Claim as the proposed Claim, the request would be denied.
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]). Claimant 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 Claimant 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 Claimant'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 Claimant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Claimant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
Here, Claimant has failed to establish the appearance of merit. He has failed to assert sufficient facts for the Court to determine that Claimant was improperly held beyond his proper release date. In fact, one of the exhibits attached to the Claim explains in detail why Defendant recalculated Claimant's release date and why the original release date was incorrect (May 10, 2016 memorandum from L. Graveline to Claimant). Claimant has failed to establish that the Claim is not patently groundless, frivolous or legally defective.
Therefore, in accordance with the foregoing, the State's Motion to dismiss the Claim is granted and Claimant's request to consider the Notice of Intention as a Claim (Court of Claims Act §10 [8(a)]) is denied and, in the alternative, for permission to serve and file a Claim late (Court of Claims Act §10[6]) is denied without prejudice to the extent Claimant is asserting a cause of action for wrongful confinement predicated on negligence by the State.
December 13, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on the State's Motion to dismiss: Papers Numbered Notice of Motion, Affirmation in Support and Exhibits Attached 1 Claimant's Response to Defendant's Motion to Dismiss and Exhibits Attached 2 Claimant's letter to the Court dated August 15, 2017 3 Filed Papers: Claim, Answer