Opinion
# 2016-038-525 Claim No. 127288 Motion No. M-87959 Motion No. M-88017
05-18-2016
CLARENCE GOURDINE v. THE STATE OF NEW YORK
CLARENCE GOURDINE, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General
Synopsis
Defendant's motion to dismiss granted because claim not timely served. Also, claim asserted only State constitutional torts arising from defendant's failure to properly consider/apply regulations and directives regarding confinement of claimant in a cell with plexiglass covering the window. Such constitutional torts unavailable where claimant had an alternative remedy available in the form of an administrative grievance and a proceeding pursuant to Article 78 of the CPLR.
Case information
| UID: | 2016-038-525 |
| Claimant(s): | CLARENCE GOURDINE |
| Claimant short name: | GOURDINE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127288 |
| Motion number(s): | M-87959, M-88017 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | CLARENCE GOURDINE, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 18, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, filed and served on the Attorney General this claim "for Cruel and Unusual Punishment under Article 1, § 5, and Due Process of Law under Article 1, § 6 [of the New York State Constitution]" (Claim No. 127388, filed Dec. 30, 2015), for being improperly placed in a cell with a plexiglass shield. Defendant moves to dismiss the claim in lieu of answer on the grounds that it is untimely and that it fails to state a cause of action. Claimant opposes defendant's motion and moves for summary judgment, which motion is opposed by defendant.
The gist of the claim is that, on an unspecified date in January 2015, claimant was moved from one cell to another, the latter of which had a piece of plexiglass covering the cell window (see Claim No. 127288, ¶ 3). The claim asserts that the use of a plexiglass window for claimant was not authorized by defendant's rules and was improperly done without a deprivation order (see id., ¶¶ 4, 6-7; see also Claimant's Affidavit in Support of Summary Judgment, ¶¶ 6, 7), and that his placement in that cell subjected him to cruel and unusual punishment with no just cause.
It is well established that a claim arising from personal injury due to either the unintentional or intentional torts of defendant's employees must be filed with the Clerk of the Court and served upon the Attorney General within ninety days after the accrual of the claim (Court of Claims Act §§ 10 [3]; 10 [3-b]). Alternatively, and within that same ninety-day period, the claimant may serve upon the Attorney General a written notice of intention to file a claim (id.). The filing and service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]) and the failure to comply with those requirements is a jurisdictional defect requiring dismissal of the claim (see id.; Ivy v State of New York, 27 AD3d 1190, 1191 [4th Dept 2006]; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]).
Here, the claim alleges that he was placed in the cell with a plexiglass window sometime in January 2015. Thus, utilizing January 14, 2015 as the date of accrual, the claim was required to be filed and served not later than April 14, 2015, ninety days thereafter. Defendant has demonstrated that the claim was not served on the Attorney General until December 24, 2015 (see Barringer Affidavit, ¶ 3; Cagino Affirmation, Exhibit A; see also, Claimant's Affidavit in Support of Motion for Summary Judgment, ¶ 3). The claim was not timely served. In opposition to defendant's motion to dismiss, claimant argues that the claim was timely within the statute of limitations set forth in Article 2 of the CPLR, but he does not dispute that it was not timely within the jurisdictional requirements of the Court of Claims Act.
Defendant reads the handwritten claim as asserting an accrual date of January 1, 2015 (see Cagino Affirmation in Support, ¶ 5), but in opposition to the motion, claimant asserts that the handwritten claim states an accrual date of January 14, 2015 (see Claimant's Affidavit in Support of Summary Judgment, ¶ 8). Assuming without deciding that the claim accrued when claimant was placed in the cell with plexiglass and not upon some later event, the Court will consider January 14, 2015 to be the date of accrual for purposes of this motion. --------
Even assuming that the claim was timely filed and served, defendant correctly contends that the claim fails to state a cause of action. A cause of action sounding in State constitutional tort is a "narrow remedy" that is available only when claimant has no other remedy by which to enforce the claimed constitutional right (see Brown v State of New York, 89 NY2d 172, 192 [1996]; Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]; Waxter v State of New York, 33 AD3d 1180, 1181-1182 [3d Dept 2006]; Bullard v State of New York, 307 AD2d 676, 678 [3d Dept 2003]). Here, claimant's confinement in a cell with plexiglass (i.e. defendant's non-compliance with its own rules) could have been addressed in an institutional grievance, and if unsuccessful, in a judicial proceeding in Supreme Court pursuant to Article 78 of the CPLR (see e.g., Johnson v State of New York, UID No. 2013-038-110 [Ct Cl, DeBow, J., Nov. 26, 2013]). Thus, because claimant "had the opportunity to seek redress for the same wrongs asserted in [t]his action in the Court of Claims" (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1150 [3d Dept 2009]), claimant's causes of action sounding in State constitutional torts - the only causes of action asserted in the claim - are "unnecessary and inappropriate" (id.) and must be dismissed (see id.; Johnson v State of New York, UID No. 2013-038-110).
In light of the conclusion that this claim must be dismissed on jurisdictional grounds, claimant's motion for summary judgment is rendered moot and need not be discussed. Accordingly, it is
ORDERED, that defendant's motion number M-87959 is GRANTED, and claim number 127288 is DISMISSED, and it is further
ORDERED, that claimant's motion number M-88017 is DENIED as moot.
May 18, 2016
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim Number 127288, filed December 30, 2015; (2) Notice of Motion to Dismiss in Lieu of Answer, dated January 21, 2016; (3) Affirmation of Paul F. Cagino, AAG, in Support of Motion to Dismiss in Lieu of Answer, dated January 21, 2016, with Exhibits A-B, including: Affidavit of Janet Barringer, sworn to January 19, 2016; (4) Notice of Motion for Summary Judgment, dated January 29, 2016; (5) Affidavit of Clarence Gourdine in Support of Motion for Summary Judgment (and in Opposition to Motion to Dismiss), sworn to January 29, 2016, with Exhibits A-D; (6) Affirmation of Paul F. Cagino, AAG, in Opposition to Claimant's Motion for Summary Judgment, dated February 17, 2016, with Exhibit A.