Opinion
# 2016-038-556 Claim No. 127681 Motion No. M-88350
09-19-2016
DOMINIC M. FRANZA, 92A3659 v. THE STATE OF NEW YORK
DOMINIC M. FRANZA, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: J. Gardner Ryan, Assistant Attorney General
Synopsis
Defendant's motion to dismiss granted. Claim did not state a cause of action arising from defendant's promulgation of rules that allegedly contravened legislative mandate.
Case information
| UID: | 2016-038-556 |
| Claimant(s): | DOMINIC M. FRANZA, 92A3659 |
| Claimant short name: | FRANZA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127681 |
| Motion number(s): | M-88350 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | DOMINIC M. FRANZA, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: J. Gardner Ryan, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 19, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, filed this claim alleging that claimant's constitutional right to due process was violated when he was denied parole due to the failure of the Department of Corrections and Community Supervision (DOCCS) to fully implement 2011 amendments to the Executive Law governing parole release decisions. Defendant makes this pre-answer motion to dismiss the claim on the grounds that the claim fails to state a cause of action. Claimant opposes the motion.
The claim alleges that rules promulgated by DOCCS and the Parole Board after the Executive Law was amended were contrary to the legislative intent of the amendments, and that the promulgation was unconstitutional. Specifically, the claim alleges that the 2011 amendments required the Parole Board to establish written procedures that incorporate risk and needs principles, and that the rule promulgated by the Parole Board merely added a risk and needs assessment to be considered in making parole release decisions. The claim asserts that the Parole Board's actions violated the New York State constitutional guarantee of fair procedure under the due process clause in article I, § 6 and the separation of powers that exists under the New York constitution, and that their actions were contrary to law and without authority (see Claim number 127681, ¶¶ 29-33). The claim alleges that when claimant appeared before the Parole Board on December 15, 2015, he was "subjected to an unlawful and unconstitutional proceeding, in complete violation of" the Executive Law because no written procedures were made and filed, and that he was caused "to remain in prison past his minimum sentence without Due Process of Law" and that he "cannot receive Due Process of Law until [the unlawful and unconstitutional rule-making is] removed, and lawful written procedures for risks and needs are made" (id., ¶ 35). Defendant contends that the claim must be dismissed because it seeks damages due to "the State's inadequate performance of a clear governmental function, the responsibility of the executive branch of government to faithfully implement the will of the citizenry as reflected through the laws enacted by a representative legislative body" and that defendant "retains its absolute immunity in areas involving its governmental function, including rule-making for the public benefit, since a duty to the entire public, not a tort duty owed to individuals is implicated" (Ryan Affirmation, ¶¶ 3, 5). Claimant argues that the claim alleges a breach of a statutory duty, which is actionable under McLean v City of New York (12 NY3d 194 [2009]). Claimant further contends that the claim asserts a federal procedural due process constitutional violation and not a New York State constitutional violation, but to the extent that the claim asserts a State constitutional tort, it would be actionable under Brown v State of New York (89 NY2d 172 [1996]).
On a motion to dismiss for failure to state a cause of action:
"claimant's claim is liberally construed and all facts asserted therein . . . 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]).
Analysis of the merits of defendant's invocation of governmental immunity from negligence claims begins with consideration of whether the acts or omissions alleged in the claim were performed by defendant as a proprietary function or in a governmental capacity (see Applewhite v Accuhealth, Inc., 21 NY3d 420, 425 [2013]). It is clear that the promulgation and implementation of regulations to effectuate the 2011 amendments falls within defendant's governmental capacity, and in opposition to the motion, claimant acknowledges as much.
The next analytical question is whether there existed a special relationship between claimant and defendant (see Applewhite, at 425). This is so because the government, in performance of its governmental functions, owes a general duty to the public at large, and one who is allegedly injured by negligent performance of a governmental function must demonstrate that he or she was owed a special duty that arose from a special relationship (see McLean v City of New York, 12 NY3d 194, 199 [2009]; Valdez v City of New York, 18 NY3d 69, 75 [2011]). As relevant to this claim and motion, a special relationship giving rise to a special duty may arise "when [a governmental agency] violates a statutory duty enacted for the benefit of a particular class of persons" (Pelaez v Seide, 2 NY3d 186, 199-200 [2004]). "To form a special relationship through a breach of a statutory duty, the governing statute must authorize a private right of action" (id., at 200). In the absence of an expressly authorized private right of action, an implied right of action may arise: (1) if the claimant is a member of the class for whose benefit the statute was enacted; (2) if recognition of a private right of action would further the purposes of the statute; and (3) if doing so would be consistent with the legislative scheme (see id.). To survive a motion to dismiss for failure to state a cause of action, the elements of a special relationship must be stated in the claim (see Pike v State of New York, 214 AD2d 934, 936 [3d Dept 1995]). Although claimant argues in opposition to the motion that "it is manifest" that this three prong test is met here (see Opposition to State's Motion, ¶ 18), facts that would support such a contention are not pleaded in the claim. Accordingly, defendant's motion to dismiss the claim will be granted because the claim includes no allegations that there was a special relationship that gave rise to a special duty owing from defendant to claimant.
Nor does the claim assert an actionable constitutional tort. Claimant's contention that the claim asserts a federal constitutional violation is not compelling, as this Court 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]). A cause of action sounding in State constitutional tort is a narrow remedy that is not actionable if alternate remedies are available to vindicate the constitutional right (see Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]; Deleon v State of New York, 64 AD3d 840, 840-841 [3d Dept 2009], lv denied 13 NY3d 712 [2009]). Here, claimant's allegations that the Parole Board failed to comply with a statutory mandate to establish written procedures is subject to judicial review pursuant to CPLR article 78 (see Matter of Bermudez v Fischer, 71 AD3d 1361 [3d Dept 2010], lv denied 15 NY3d 702 [2010]; Matter of Davis v Burge, 55 AD3d 1162 [3d Dept 2008]), or through a declaratory judgment action in Supreme Court (see Shelton v New York State Liq. Auth., 61 AD3d 1145,1150-1151 [3d Dept 2009]), and thus, a State constitutional tort is not actionable.
Accordingly, it is
ORDERED, that motion No. M-88350 is GRANTED and claim number 127681 is DISMISSED.
September 19, 2016
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 127681, filed March 21, 2016, with Exhibits 1-3; (2) Notice of Motion to Dismiss, dated March 28, 2016; (3) Affirmation of J. Gardner Ryan, AAG, dated March 28, 2016, with Exhibits 1; (4) Notice of Motion, filed April 5, 2016; (5) Affidavit of Dominic M. Franza in Support of Motion, sworn to April 1, 2016; (6) Correspondence of J. Gardner Ryan, AAG, dated April 1, 2016, with Affidavit of Service of Joann Mylod, sworn to April 1, 2016; (7) Affirmation of J. Gardner Ryan, AAG, dated April 7, 2016; (8) Affidavit of Dominic M. Franza in Opposition to Defendant's Motion to Dismiss, sworn to April 11, 2016, with Exhibits 1-2.