Opinion
# 2019-040-001 Claim No. 129318 Motion No. M-92298
01-08-2019
ESTATE OF LONNIE LAMONT HAMILTON, and LONNIE LEE HAMILTON, individually and as Administrator of Estate v. THE STATE OF NEW YORK
GIAMPA LAW By: Eli Wagschal, Esq. LETITIA JAMES Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG
Synopsis
State's Motion to Dismiss granted in part and denied in part. State constitutional cause of action dismissed. Court concludes, based upon case law, that wrongful death and "survival" claims are subject to service and filing requirements of CCA § 10(2), not § 10(3).
Case information
| UID: | 2019-040-001 |
| Claimant(s): | ESTATE OF LONNIE LAMONT HAMILTON, and LONNIE LEE HAMILTON, individually and as Administrator of Estate |
| Claimant short name: | HAMILTON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | By Stipulation of the Parties dated June 13, 2018, this matter is discontinued against all named Defendants in the Claim, except for the State of New York (Ex. A attached to Affirmation in Opposition). Therefore, the Court has amended the caption accordingly. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129318 |
| Motion number(s): | M-92298 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | GIAMPA LAW By: Eli Wagschal, Esq. |
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | January 8, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's Motion to dismiss the Claim on the basis that the Claim was untimely served upon Defendant and filed with the Court in violation of Court of Claims Act §§ 10 and 11, as to certain causes of action, and that the Claim fails to particularize and/or state a cause of action, as to certain causes of action, is granted in part and denied in part.
This Claim, which was filed with the office of the Clerk of the Court on February 16, 2017, alleges that, on March 18, 2016, Lonnie Lamont Hamilton (hereinafter, "Decedent" or "Mr. Hamilton") died while incarcerated at Marcy Correctional Facility (hereinafter, "Marcy") (Claim, ¶¶ 1, 3). Thereafter, his father, Lonnie Lee Hamilton (hereinafter, "Claimant"), was granted Letters of Administration to act as Administrator of his son's Estate, by the Surrogate's Court of Oneida County on October 20, 2016 (id., ¶ 4, and Ex. C attached to Affirmation in Opposition of Eli Wagschal, Esq. [hereinafter, "Wagschal Affirmation"]). The Claim further asserts that Decedent: had a history of depression and suicidal ideation, which were known to Defendant; attempted to kill himself on March 15, 2016; was placed on suicide watch on March 16, 2016; and was improperly and prematurely taken off suicide watch on March 17, 2016 (id., ¶ 14).
The Claim also alleges that, on March 16, 2016, Decedent was placed in solitary confinement and remained there until his death two days later, and that, during that time, Decedent was denied food, recreation time, and was tortured, taunted, goaded, and encouraged, by Defendant's employees to commit suicide (Claim, ¶ 15). In addition, it is claimed that Decedent was given bed sheets and clothing which he could use as a hanging device (id.). Decedent was last seen alive at approximately 11:00 a.m. (id.), and the next time he was seen, it was discovered that he had hanged himself with portions of torn bed sheets (id., ¶ 16). An ambulance was called at approximately 11:33 a.m., and Decedent was transported to St. Elizabeth Medical Center in Utica, New York, where Mr. Hamilton was pronounced dead at 12:36 p.m. (id., ¶ 17)
It is further alleged that, on March 28, 2016, Decedent was buried in a plain, wooden box in his State-issued inmate clothing at a cemetery located on the grounds of Marcy (Claim, ¶ 20). Claimant asserts that, during the period between the date of Mr. Hamilton's death and the date of burial, Defendant failed to make appropriate attempts to contact Decedent's family to notify them of the death and inquire how the family wished to handle the remains (id., ¶ 21). Thus, Mr. Hamilton was buried without the knowledge or consent of his family, depriving them of the right to sepulcher (id., ¶ 24). The Claim then sets forth eight separate causes of action. The causes of action in numerical order are: negligent supervision; wrongful death; Federal Constitutional violations; State Constitutional violations; Monell claim; negligent infliction of emotional distress; intentional infliction of emotional distress; and loss of sepulcher. Claimant also seeks to recover punitive and/or exemplary damages (id., ¶ 60).
Pursuant to the Court of Claims Act provisions applicable to wrongful death and 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[2], 10[3], 10[3-b]). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual. Here, Claimant served three Notices of Intention and, if the Notices of Intention are defective, they do not extend Claimant's time to serve and file the Claim, and, thus, the Claim filed with the office of the Clerk of the Court on February 16, 2017, and served upon Defendant on March 24, 2017, would be untimely.
Defendant seeks to dismiss the Claim in its entirety, pursuant to CPLR § 3211(a)(2), (7) and (8) and Court of Claims Act §§ 8, 9, 10, and 11 on the basis that: (1) the Court lacks jurisdiction over all of the Defendants with the exception of the State of New York; (2) the Claim was not timely served; and (3) the Claim fails to particularize and/or state a cause of action (Affirmation of Sean B. Virkler, Esq., Assistant Attorney General [hereinafter, "Virkler Affirmation"], ¶ 2).
Defendant states that Claimant served a Notice of Intention to File a Claim (hereinafter, "Notice of Intention") on June 15, 2016 (Ex. A attached to Virkler Affirmation). The Notice of Intention alleges loss of sepulcher and negligent infliction of emotional distress (Virkler Affirmation, ¶ 3, and Ex. A, ¶ 2). Claimant served a second Notice of Intention on October 28, 2016. That Notice of Intention alleges negligence, negligent supervision, and wrongful death (id., ¶ 3, and Ex. B attached thereto). Paragraph 4 of the second Notice of Intention also lists as items of damage "Emotional Distress," and "Violations of State and Federal Constitutional Rights" (Ex. B, ¶ 4). Claimant served upon Defendant an unverified Supplemental Notice of Intention, dated December 7, 2016, on December 16, 2016. The document was rejected and returned. Claimant then served a verified supplemental Notice of Intention on December 27, 2016 (Virkler Affirmation, ¶ 3, and Ex. C attached). That Notice of Intention alleges negligent supervision, negligence, medical malpractice, and wrongful death (id., ¶ 3, and Ex. C, ¶ 2). The supplemental Notice of Intention also asserts, in paragraph 4 under items of damage: emotional distress, loss of sepulcher, and violation of State and Federal Constitutional Rights (Ex. C attached to Virkler Affirmation, ¶ 4).
Prior to Claimant submitting any opposition to this Motion, the parties entered into a stipulation wherein the instant Claim was discontinued against all Defendants named in the caption, except for the State of New York (see Footnote 1, supra). The parties further stipulated and agreed that:
[T]he Third Cause of Action (Federal Constitutional Violations); the Fifth Cause of Action (Monell Claim); and the Seventh Cause of Action (Intentional Infliction of Emotional Distress) in the above-entitled [C]laim, together with the claim for punitive damages, be and the same is hereby withdrawn and discontinued without prejudice as to the State of New York. All remaining causes of actions (Negligent Supervision; Wrongful Death; State Constitutional Violations; Negligent Infliction of Emotional Distress; and Loss of Sepulcher) are not discontinued or abandoned."
(Stipulation of Partial Discontinuance, Ex. A attached to Wagschal Affirmation)
As stated above, Defendant asserts that the Claim was not timely served and that it fails to meet the particularity requirements of Court of Claims Act § 11(b) and/or state a cause of action. In addition, Defendant asserts that the three Notices of Intention were untimely served and that they, also, all fail to meet the particularity requirements of Court of Claims Act § 11(b).
The Court will first address the issue of timeliness. Defendant asserts that all three Notices of Intention were not timely served within ninety days of accrual of the various causes of action pursuant to Court of Claims Act § 10(3) and § 10(3-b). Claimant served the first Notice of Intention on June 15, 2016 (Virkler Affirmation, ¶ 3, and Ex. A attached thereto). "The common-law right of sepulcher affords the deceased's next of kin an absolute right to the immediate possession of a decedent's body for preservation and burial" which is a legal right of the surviving family (Shipley v City of New York, 25 NY3d 645, 653 [2015]; see Shepherd v Whitestar Development Corp., 113 AD3d 1078, 1080 [4th Dept 2014]; Melfi v Mount Sinai Hosp., 64 AD3d 26, 32 [1st Dept 2009]; Booth v Huff, 273 AD2d 576, 577 [3d Dept 2000]). The negligent infliction of emotional distress asserted in the first Notice of Intention clearly relates to pain suffered by Claimant owing to the failure to notify Mr. Hamilton's family that he had died. It does not state a claim that is independent from the claim for loss of sepulcher, which itself "presumes the existence of mental anguish" (Shepherd v Whitestar Development Corp., supra at 1081; see Drever v State of New York, UID No. 2013-032-016 [Ct Cl, Hard, J., Mar. 14, 2014]). Thus, the Court concludes that the cause of action for negligent infliction of emotional distress to Claimant is duplicative of the loss of sepulcher claim.
The Court will address the issue of timeliness first and address the issues of particularity (Court of Claims Act § 11[b]) and failure to state a cause of action infra.
Moreover, because the right of sepulcher encompasses a "solely emotional [or mental] injury," the cause of action does not accrue until a claimant is aware that the interference with the right of sepulcher has occurred (Melfi v Mount Sinai Hosp., supra at 32). Thus, "the accrual of claim in right of sepulcher actions belongs in that small body of case law where a claim does not accrue with the negligent act but at the time a [claimant] is actually injured by the negligent act" (id., at 39 [emphasis in the original]). Mr. Hamilton died on March 18, 2016 and was buried on March 28, 2016. Claimant does not state the date upon which he learned of Mr. Hamilton's death, although it apparently was after the burial. As previously noted, Claimant served the first Notice of Intention on June 15, 2016, which was 89 days after Mr. Hamilton's death, and 79 days after the burial. Thus, the Court finds that the first Notice of Intention was timely served upon Defendant.
Claimant was appointed Administrator of his son's Estate on October 20, 2016 (Claim, ¶ 4, and Ex. C attached to Wagschal Affirmation). The second Notice of Intention was served on October 28, 2016 (Virkler Affirmation, ¶ 3, and Ex. B attached thereto) and the supplemental Notice of Intention was served on December 27, 2016 (id., and Ex. C attached thereto). Thus, those two Notices of Intention were served within 90 days of Claimant's appointment as Administrator of the Estate (see Court of Claims Act § 10[2]).
Langner v State of New York (65 AD3d 780, 782 [3d Dept 2009]) stated in a footnote:
While Court of Claims Act § 10 is silent about the timing for the filing and service of a claim by an executor or administrator for causes of action other than wrongful death brought on behalf of a decedent, it has been held that all "survival" claims are subject to the service and filing requirements contained in section 10 (2) (Lichtenstein v State of New York, 93 NY2d [911] at 912-913 [1999]; see Tooks v State of New York, 40 AD3d [1347] at 1348 [(3d Dept 2007), lv denied 9 NY3d 814 (2007)]; see also Thomas v State of New York, 57 AD3d [969] at 970 [2d Dept 2008]).
Therefore, the Court concludes that the three Notices of Intention all were timely served and, thus, the Claim was timely served and filed as it was served and filed within two years of Mr. Hamilton's death as required by Court of Claims Act § 10(2).
The Court will now address Defendant's assertion that the Claim should be dismissed as untimely to certain causes of action because the Notices of Intention do not meet the particularity requirement of Court of Claims Act § 11(b).
Court of Claims Act § 11(b) requires that, "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and … the total sum claimed" (see Demonstoy v State of New York, 130 AD3d 1337 [3d Dept 2015]). The statute further states that a Notice of Intention to file a claim "shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated."
In light of the Stipulation submitted by the parties as discussed above, there are now five causes of action remaining in the instant Claim: negligent supervision; wrongful death; State Constitutional violations; negligent infliction of emotional distress; and loss of sepulcher.
In its Motion papers, Defendant asserts that the causes of action for negligent supervision, State Constitutional violations, and negligent infliction of emotional distress should be dismissed, inter alia, because the causes of action were not stated with sufficient particularity in the Notices of Intention to meet the Court of Claims Act § 11(b) requirements. Defendant, however, did not seek dismissal of, or separately address, the causes of action for wrongful death and loss of sepulcher. Thus, the Court concludes that those two causes of action remain viable.
Defendant asserts that the first Notice of Intention is wholly insufficient to extend the time to file a claim for the cause of action for negligent supervision, as it fails to allege negligent supervision or supervision at all, nor is there any reference to what a supervisor did and/or neglected to do (Virkler Affirmation, ¶ 9). In addition, Defendant states the entire first Notice of Intention fails to reveal any allegation that the Department of Corrections and Community Supervision (hereinafter, "DOCCS") staff was aware or had actual or constructive notice of problems with personnel and failed to act, or otherwise failed to use reasonable care. Defendant asserts that there are no allegations that a specific correction officer acted inappropriately in the past, or that a superior failed to properly supervise in the past. It is further asserted that there are no allegations related to any time frame during which the correction officers(s) and supervisor(s) allegedly acted inappropriately. In addition, Defendant argues that the first Notice of Intention does not assert any facts that would lead one to infer a negligent supervision cause of action (id., ¶ 10).
In his affirmation submitted in support of Defendant's Motion, Defense counsel does not address the sufficiency of the second and supplemental Notices of Intention with respect to this cause of action. However, in his Reply Affirmation, counsel asserts that the second and supplemental Notices of Intention are insufficient as they fail to assert any facts that would support a negligent supervision cause of action (Virkler Reply Affirmation, ¶ 7). Counsel states that those two Notices of Intention state that "this is a Claim for negligent supervision," but provide no other information other than assertions that are related to the wrongful death cause of action (id.).
Raising substantive issues of law for the first time in reply papers, as Defendant has done here, is improper, and normally the Court would not consider such arguments (People v Ford, 69 NY2d 775, 777 [1987]; Spera v Spera, 71 AD3d 661, 664 [2d Dept 2010]; State Farm Fire & Cas. Co. v LiMauro, 103 AD2d 514, 521 [2d Dept 1984], affd 65 NY2d 369 [1985]), however, Claimant asked for an adjournment of the Motion so that the issue could be addressed and the Court granted the request. Therefore, the Court will consider whether all three Notices of Intention meet the specificity requirements of Court of Claims Act § 11(b).
It is well established that the failure to satisfy the substantive pleading requirements of Court of Claims Act § 11(b) is a jurisdictional defect that requires dismissal of the Claim (Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007]; Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003]; Czynski v State of New York, 53 AD3d 881, 882-882 [3d Dept 2008], lv denied 11 NY3d 715 [2009]). As stated by the Appellate Division, Third Department, in Morra v State of New York (107 AD3d 1115, 1115-1116 [3d Dept 2013]):
Although "absolute exactness" is not required (Heisler v State of New York, 78 AD2d 767, 767 [4th Dept] [1980]), the claim must " 'provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of its liability' " (Robin BB. v State of New York, 56 AD3d 932, 932-933 [3d Dept] [2008], quoting Sinski v State of New York, 265 AD2d 319, 319, [2d Dept] [1999]). However, defendant is not required "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York [supra, at 208]). Failure to abide by these pleading requirements constitutes a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result (see Kolnacki v State of New York, [supra] at 281; Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept] [2010], lv dismissed 15 NY3d 911 [2010]).
Here, the Court concludes that Claimant's second and supplemental Notices of Intention fulfill the substantive pleading requirements of a claim as provided in Court of Claims Act §11(b). The first Notice of Intention, served on June 15, 2016, only asserts causes of action for loss of sepulcher and negligent infliction of emotional distress. However, the second Notice of Intention, served on October 28, 2016, asserts several causes of action, including one for negligent supervision (Ex. B attached to Virkler Affirmation, second Notice of Intention, ¶ 2). The second Notice of Intention states that the Claim arose on March 18, 2016, at approximately 12:30 p.m.; that Mr. Hamilton was declared dead; and that Mr. Hamilton hung himself with a bed sheet while in solitary confinement (id., ¶ 3). It is further asserted that, in the days preceding his death, Marcy and its correction officers improperly and inhumanely treated Mr. Hamilton. While Mr. Hamilton was in solitary confinement: officers and the correctional facility failed to follow correctional facility procedures and directives; officers refused to provide Mr. Hamilton with meals for a period of time exceeding 24 hours; they failed to accurately supervise and assess Mr. Hamilton's mental health while on suicide watch, and improperly removed him from suicide watch; they denied his right to recreation; they "wet" his cell when he objected to this treatment and decreased cell temperatures; correction officers goaded and encouraged Mr. Hamilton to commit suicide; they failed to provide Mr. Hamilton with proper tear-away bed sheets and clothing while he was on suicide watch; correction officers failed to promptly come to the aid of Mr. Hamilton when he was in need of medical attention (id.). Facility personnel also failed to provide 24-hour supervision which, it is asserted, is precedent for all inmates who express suicidal ideations like Decedent (id.).
The Court finds that this Notice of Intention sets forth the date of accrual and the basis of Claimant's assertions of negligent supervision. Therefore, the Court concludes that the second Notice of Intention, served upon Defendant on October 28, 2016, meets the particularity requirements of Court of Claims Act § 11(b). As the Court also found that this Notice of Intention was timely served, the Court finds that this cause of action was timely and properly asserted in the Claim.
As the Court has found that the second Notice of Intention was timely served and meets the particularity requirements of Court of Claims Act § 11(b), the issue of whether the supplemental Notice of Intention, served on December 16, 2016, meets the particularity requirements of Court of Claims Act § 11(b), becomes moot. However, the Court also finds that the supplemental Notice of Intention also meets the particularity requirements of Court of Claims Act § 11(b) for the same reasons as set forth above regarding the second Notice of Intention.
Defendant moves to dismiss the negligent infliction of emotional distress cause of action on the basis that it was not timely served and filed. As the Court stated above, the Court found that all three Notices of Intention were timely served and filed, and that all the causes of action asserted in the Claim are timely.
In addition, Defendant asserts that the cause of action is not stated in the Claim with sufficient particularity to meet the requirements of Court of Claims Act § 11(b). It is asserted that Claimant failed to particularize the nature of the cause of action and failed to state a cause of action (Virkler Affirmation, ¶ 24).
The Claim (at paragraph 52) states that named employees of Defendant knew or should have known "that the conduct described herein would and did proximately result in physical and emotional distress to [D]ecedent." The conduct described would be the conduct set forth in the Claim at paragraphs 14, 15, and 16 (infra, p. 2). The Court finds and concludes that the cause of action asserting negligent infliction of emotional distress, as to the Decedent, meets the particularity requirements of Court of Claims Act § 11(b).
Defendant further asserts that the cause of action should be dismissed pursuant to CPLR 3211(a)(7) as it fails to state a cause of action for negligent infliction of emotional distress as Claimant is required to show a breach of duty owed to Decedent which unreasonably endangered Decedent's physical safety or caused him to fear for his own safety (Virkler Affirmation, ¶ 25).
On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Dee v Rakower, 112 AD3d 204, 208 [2d Dept 2013]). Thus, the determination is made by reference to whether "the proponent of the pleading has a cause of action, not whether he has stated one" (id. at 88 [quotation marks and citations omitted]).
As succinctly explained in Topor v State of New York, 176 Misc 3d 177, 180 (Ct Cl 1997):
The law has long been settled that a claimant can recover for emotional trauma even in the absence of a physical injury (Battalla v State of New York, 10 NY2d 237 [1961]; Scannapieco v New York City Tr. Auth., 200 AD2d 410, 412 [1st Dept 1994] … [T]here is no requirement that a claimant seeking such recovery must be in physical fear of his or her own safety. That point is made clear by a review of pertinent Court of Appeals rulings. In the case of Martinez v Long Is. Jewish Hillside Med. Ctr. (70 NY2d 697 [1987]), an abortion was performed on the plaintiff based on the erroneous advice of her physician that the baby would be born with a congenital birth defect. The plaintiff sued for emotional harm and the Court of Appeals held that "where there is a breach of a duty owed by defendant to plaintiff, the breach of that duty resulting directly in emotional harm is actionable" (supra at 699). [Similarly, i]n the case of Johnson v State of New York (37 NY2d 378, 379-380 [1975]), the Court of Appeals permitted the daughter of a hospital patient to recover for "emotional harm sustained by her as a result of negligent misinformation given by the hospital that her mother had died." In neither of the foregoing cases was the plaintiff in fear for her own physical safety.
Here, the Court finds that Claimant has stated a cause of action for negligent infliction of emotional distress upon the Decedent. The Court does note that "New York courts have been reluctant to recognize claims grounded in negligence when the damages are solely emotional" (Nadal v Jaramillo, 102 AD3d 843, 844 [2d Dept 2013]; see Lauer v City of New York, 95 NY2d 95, 103, n. 1 [2000]), but it remains to be seen whether or not Claimant can establish that the behavior of the State's employees was "so extreme and outrageous as to be considered atrocious and utterly intolerable" (Moore v Melesky, 14 AD3d 757, 761 [3d Dept 2005] [internal quotations and citations omitted]), or was so unreasonable as to endanger Decedent's physical safety, or cause him to fear for his safety (Nicholson v A. Anastasio & Sons Trucking Co., Inc., 77 AD3d 1330, 1331 [4th Dept 2010]).
Defendant also asserts that the cause of action should be dismissed as duplicative of the loss of sepulcher and wrongful death causes of action. The Court concluded above that the negligent infliction of emotional distress asserted by Claimant, in his individual capacity, is duplicative of the loss of sepulcher cause of action. With respect to the negligent infliction of emotional distress upon Mr. Hamilton, however, the causes of action are not duplicative. The negligent infliction of emotional distress cause of action concerning Mr. Hamilton relates to the emotional distress suffered by Decedent prior to his death as a result of the alleged actions of Defendant's employees. Thus, it is not duplicative of the loss of sepulcher cause of action, which is for Claimant's emotional injuries caused by not being informed of his son's death and the inability to bury his body. The Court, likewise, finds that the cause of action for negligent infliction of emotional distress upon Decedent is not duplicative of the wrongful death cause of action. While the wrongful death cause of action compensates Decedent's distributees for their own pecuniary damages, the negligent infliction of emotional damages asserted with respect to Mr. Hamilton is intended to compensate Decedent for the injuries he suffered and is personal to him (see Heslin v County of Greene, 14 NY3d 67, 76 [2010]). "In short, the two causes of action are predicated on essentially different theories of loss which accrue to different parties" (id. at 77 [internal quotations and citations omitted]). Thus, that portion of the State's Motion which seeks to dismiss the cause of action for negligent infliction of emotional distress upon Claimant is granted and the cause of action is dismissed, but, as regards Mr. Hamilton, it is denied, and that cause of action survives.
Defendant also seeks dismissal of the cause of action set forth in the Claim that alleges violations of the New York State Constitution. 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 can be redressed by an alternative remedy, namely, either in a Federal Court action asserting violations of the Federal Constitution, or in the surviving causes of action set forth in this Claim (Alsaifullah v State of New York, 161 AD3d 1426, 1426 [3d Dept 2018]; Oppenheimer v State of New York, 152 AD3d 1006, 1008-1009 [3d Dept 2017]; Flemming v State of New York, 120 AD3d 848, 849 [3d Dept 2014]; but cf. Boggs v State of New York, 51 Misc 3d 376 [Ct Cl 2015]). Thus, Defendant's Motion to dismiss the cause of action alleging violations of Claimant's State constitutional rights is granted and the cause of action is dismissed.
Therefore, in accordance with the foregoing, the State's Motion to dismiss the Claim is granted in part and denied in part, and the parties have stipulated to the withdrawal of causes of action three, five, and seven of the Claim, as well as the demand for punitive damages.
January 8, 2019
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 Affirmation in Opposition and Exhibits Attached 2 Defendant's Reply Affirmation in Support 3 Claimant's Sur-Reply 4 Defendant's Sur-Reply Affirmation 5 Filed papers: Claim, Answer