Opinion
# 2020-038-511 Claim No. 133323 Motion No. M-94469
01-30-2020
D.D. v. THE STATE OF NEW YORK
D.D., Pro se LETITIA JAMES, Attorney General of the State of New York By: Heather R. Rubinstein, Assistant Attorney General
Synopsis
Defendant's motion to dismiss the claim granted. The claim failed to comply with the pleading requirements of Court of Claims Act § 11 (b), thus depriving the Court of subject matter jurisdiction, and it failed to state a cause of action.
Case information
| UID: | 2020-038-511 |
| Claimant(s): | |
| Claimant short name: | D.D. |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133323 |
| Motion number(s): | M-94469 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | D.D., Pro se |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Heather R. Rubinstein, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 30, 2020 |
| City: | Saratoga Srprings |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Inasmuch as claimant alleges in his opposition to the motion to dismiss that he was a victim of sexual assault as defined in Article 130 of the Penal Law, the caption has been amended in accordance with Civil Rights Law § 50-b (1).
Decision
Claimant, an individual who is incarcerated in a State facility, filed this claim seeking compensation for an alleged violation of his right to free exercise of his religion. Defendant moves to dismiss the claim for lack of subject matter jurisdiction and failure to state a cause of action. Claimant opposes the motion.
The Court will first address defendant's argument that the claim fails to comply with the pleading requirements set forth in Court of Claims Act § 11 (b), as it implicates the subject matter jurisdiction of the Court to entertain the claim. The Court of Claims Act requires that "[t]he claim . . . 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]). 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 v State of New York, 1 NY3d 201, 207 [2003] [internal quotation marks omitted]). "Although absolute exactness is not required, the claim must provide a sufficiently detailed description of the particulars of the claim," and "defendant is not required to ferret out or assemble information that [Court of Claims] section 11 (b) obligates the claimant to allege" (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotation marks and citation omitted]). The failure to comply with the pleading requirements of Court of Claims Act § 11 (b) is a fatal defect in subject matter jurisdiction that requires dismissal of the claim (see Lepkowski, 1 NY3d at 209; see also Kolnacki v State of New York, 8 NY3d 277, 281 [2007], rearg denied 8 NY3d 994 [2007]).
The claim alleges as follows:
"I was deprived of a reasonable opportunity to exercise my religious freedom in which is guaranted [sic] to me pursuant to [US const, art 1st, 14th Amends; NY Const, art I, §§ 3-9; the Religious Freedom Restoration Act; and the Religious Land Use and Institutionalized Persons Act of 2000] to observe the holy month of Ramadan"
(Claim No. 133323, ¶ 2). The claim alleges that the claim accrued on February 28, 2019 at Green Haven Correctional Facility (CF) (see id. at ¶¶ 3-4).
The Religious Freedom Restoration Act (RFRA) provides that "[g]overnment shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability" and that "[g]overnment may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person . . . is in furtherance of a compelling governmental interest; and . . . is the least restrictive means of furthering that compelling governmental interest" (42 USC § 2000bb-1 [b]). The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) provides that "[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person . . . is in furtherance of a compelling governmental interest; and . . . is the least restrictive means of furthering that compelling governmental interest" (42 USC § 2000cc-1 [a]).
Attached to the claim are the transcripts from defendant's June 27, 2000 guilty plea to assault in the first degree, the July 11, 2000 sentencing hearing for that conviction, a February 7, 2011 predicate felony hearing and sentencing hearing related to a second criminal proceeding, and several other documents related to the calculation of claimant's release date (see Claim No. 133323, unenumerated attachments). However, these documents are not relevant to this claim, which asserts only that claimant's free exercise rights were violated during his incarceration. The transcripts appear relevant only to Claim Nos. 133321 and 133322, which, as noted above are currently the subject of motions to dismiss (see D.D., UID No. 2020-038-5-; D.D., UID No. 2020-038-5-).
In support of its motion, defendant argues that the claim must be dismissed for failure to comply with the strict pleading requirements of Court of Claims Act § 11 (b) because "[t]he [c]laim fails to include: 1) the location of the incident; 2) the date of the incident (claimant
includes a date of accrual of 2/28/19 but also states initial incident 6/18/18)[;] 3) a viable cause of action; 4) the theory of liability and [5]) any discernable actions on the part of the State (or a State actor) for which the State would be liable" (Rubinstein Affirmation in Support of Motion, ¶ 9). In opposition, claimant argues that defendant's motion to dismiss should be denied because "the State of New York has conceded to the above matter" by "fail[ing] to answer . . . the foregoing matter prior to the above claims being filed with this Court" and thus defendant should be "administratively collateral[ly] estoppe[d]" (D.D. Correspondence, dated December 3, 2019). Even affording claimant the liberal review accorded to submissions by pro se litigants (see Ali v State of New York, UID No. 2006-028-516 [Ct Cl, Sise, J., Feb. 7, 2006]), the claim patently fails to comply with the pleading requirements set forth in Court of Claims Act § 11 (b), for the reasons that follow.
Claimant currently has five claims pending before this Court, including the instant claim, each of which is the subject of a motion to dismiss (see D.D. v State of New York, UID No. 2020-038-509 [Ct Cl, DeBow, J., Jan. 30, 2020]; D.D. v State of New York, UID No. 2020-038-510 [Ct Cl, DeBow, J., Jan. 30, 2020]; D.D. v State of New York, UID No. 2020-038-512 [Ct Cl, DeBow, J., Jan. 30, 2020]; D.D. v State of New York, UID No. 2020-038-513 [Ct Cl, DeBow, J., Jan. 30, 2020]). His December 3, 2019 correspondence opposes all five motions to dismiss on the same ground. Although claimant's opposition is untimely, having been served one day prior to the return date of the instant motion to dismiss, the Court recognizes the interest in all parties being heard and will consider claimant's submission.
First, the claim fails to include sufficiently definite allegations regarding the "nature" of the claim (Court of Claims Act § 11 [b]) inasmuch as it contains only the bare allegation that claimant's free exercise right was violated when he was prevented from observing Ramadan, with no elaboration. The claim contains no factual allegations indicating, for example, by what means or by whom claimant was prevented from observing Ramadan, or whether he was prevented from observing the entirety or only a portion of the holiday. In the absence of any detailed allegations regarding the alleged violation of claimant's free exercise rights that would allow the State to investigate this claim, it must be dismissed for failure to plead the nature of the claim (see e.g. Dinerman v State of New York, UID No. 2019-038-525 [Ct Cl, DeBow, J., Apr. 15, 2019] [claim that did not "include any factual allegations that would demonstrate the nature of the claim . . . patently fail(ed) to comply with the requirements of Court of Claims Act § 11 (b)"]; Jones v State of New York, UID No. 2018-038-548 [Ct Cl, DeBow, J., May 24, 2018] [claim that failed to adequately plead theory of negligence dismissed as "manifestly noncompliant with Court of Claims Act § 11 (b)"]; Pinckney v State of New York & New York State Justice Center, UID No. 2017-038-516 [Ct Cl, DeBow, J, Feb. 10, 2017] [dismissing claim for failure to comply with Court of Claims Act § 11 (b) where the claim was "devoid of particularization of any actions that were taken, by whom they were taken, and when and where any tortious acts occurred"]).
Moreover, and notwithstanding that the claim demands $3.5 million in damages (see Court of Claims Act § 11 [b] ["the total sum claimed"]), the claim fails to include any allegations of the injuries claimant sustained as a result of the alleged violation of his right to observe Ramadan (see Claim No. 133323, ¶ 2), and thus is jurisdictionally defective and must be dismissed (see Maldonado v State of New York, UID No. 2019-038-520 [Ct Cl, DeBow, J., Apr. 11, 2019] [dismissal of claim for failure to comply with Court of Claims Act § 11 (b) mandated where "the claim contain(ed) no allegations of the injuries sustained by claimant with regard to any of its causes of action"]; Johnson v State of New York, UID No. 2019-038-501 [Ct Cl, DeBow, J., Jan. 2, 2019] [claim that was "bereft of any allegation of injuries allegedly sustained as the result of the allegedly inadequate food portions" was jurisdictionally defective for failure to comply with Court of Claims Act § 11 (b)]).
Turning to defendant's alternate ground for dismissal, 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 allegations of the pleading cannot be vague and conclusory, but must contain sufficiently particularized allegations for which a cognizable cause of action reasonably could be found" (V. Groppa Pools, Inc. v Massello, 106 AD3d 722, 723 [2d Dept 2013]).
"It is well settled that '[t]he test of the sufficiency of a [claim] is whether it gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments' "
(Moore v Johnson, 147 AD2d 621, 621 [2d Dept 1989], quoting Pace v Perk, 81 AD2d 444, 449 [2d Dept 1981]).
As an initial matter, to the extent claimant seeks to assert violations of his right to free exercise of religion under federal law, it is well settled that the Court of Claims lacks jurisdiction over claims alleging violations of the federal constitution (see Carver v State of New York, 79 AD3d 1393, 1395 [3d Dept 2010], lv denied 17 NY3d 707 [2011]; Lyles v State of New York, 2 AD3d 694, 696 [2d Dept 2003], affd 3 NY3d 396 [2004]), and that RFRA does not apply to the states because Congress acted outside of its remedial enforcement powers under section 5 of the Fourteenth Amendment when it made RFRA applicable to the states as originally enacted (see City of Boerne v P.F. Flores, 521 US 507, 532 [1997] [RFRA is not remedial legislation but rather it "attempt(s) a substantive change in constitutional protections"]; see also Gonzales v O Centro Espirita Beneficente Uniao do Vegetal, 546 US 418, 424 n 1 [2006]). Finally, the Court lacks jurisdiction to entertain the claim insofar as it asserts a violation of RLUIPA inasmuch as the United States Supreme Court has held that "States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA because no statute expressly and unequivocally includes such a waiver" (see Sossamon v Texas, 563 US 277, 293 [2011]; Washington v Gonyea, 731 F3d 143, 145 [2d Cir 2013], affd in part & revd in part 538 Fed Appx 23 [2d Cir 2013] ["sovereign immunity forecloses the availability of money damages as a remedy against states and state actors in their official capacities under RLUIPA"]).
Turning to claimant's remaining cause of action alleging that his free exercise right was violated under the New York State Constitution (see NY Const, art I, § 3), that right "has expressly been extended to those incarcerated in New York correctional facilities by [Correction Law § 610]" (Matter of Rivera v Smith, 63 NY2d 501, 510 [1984]). Nevertheless, it is well settled that a cause of action sounding in state constitutional tort is a "narrow remedy" (Brown v State of New York, 89 NY2d 172, 192 [1996]) that may be pursued only where it is "necessary to effectuate the purposes of the State constitutional protections [claimant] invokes" and "appropriate to ensure the full realization of [claimant's] rights" (Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]; see Brown, 89 NY2d at 186-188), and it is not available when another remedy is available to enforce the claimed constitutional right (see Alsaifullah v State of New York, 166 AD3d 1426, 1426 [3d Dept 2018] ["a private cause of action to recover monetary damages for state constitutional violations is permissible in certain limited situations" but "does not apply where an adequate remedy is available to the claimant in an alternate forum"]; Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Bullard v State of New York, 307 AD2d 676, 679 [3d Dept 2003]).
Although the claim alleges that claimant's rights under the New York State Constitution, article I, §§ 3-9 were violated when he was prevented from observing Ramadan (see Claim No. 133323, ¶ 2), only section 3 addresses the right to "free exercise and enjoyment of religious profession and worship" (NY Const, art I, § 3).
Pursuant to Correction Law § 610, inmates alleging religious discrimination "may institute 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]). Because claimant had available to him multiple avenues to obtain legal remedies for the alleged violation of his right to free exercise of his religion, including filing a proceeding in Supreme Court to enforce his right to free exercise of religion and filing a constitutional claim in federal court (see Alsaifullah, 166 AD3d at 1427), the availability of a state constitutional tort claim is foreclosed to him here (see Rodriguez v State of New York, UID No. 2013-038-555 [Ct Cl, DeBow, J., Sept. 17, 2013]), and his claim must be dismissed (see Alsaifullah, 166 AD3d at 1426-1427; Franza v State of New York, 164 AD3d 971, 973 [3d Dept 2018], lv denied 32 NY3d 910 [2018]).
Accordingly, it is
ORDERED, that defendant's motion number M-94469 is GRANTED, and claim number 133323 is DISMISSED.
January 30, 2020
Saratoga Srprings , New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: 1. Claim number 133323, filed July 8, 2019, with unenumerated attachments; 2. Notice of Intention to File a Claim, dated February 28, 2019; 3. Notice of Motion, dated August 16, 2019; 4. Affirmation of Heather R. Rubinstein, AAG, in Support of Motion, dated August 16, 2019, with Exhibits 1-2; 5. Correspondence of D.D., dated December 3, 2019; 6. Correspondence of Kimberley Broad, Principal Law Clerk, dated December 17, 2019;