Opinion
# 2019-038-501 Claim No. 118081 Motion No. M-92071 Cross-Motion No. CM-92749
01-02-2019
JOHNATHAN JOHNSON 89-A-1042 v. THE STATE OF NEW YORK
JOHNATHAN JOHNSON, Pro se LETITIA JAMES, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General
Synopsis
Defendant's motion seeking dismissal of causes of action alleging violations of DOCCS food service guidelines and grievance determination granted due to lack of subject matter jurisdiction to renew administrative determinations. Cause of action sounding in negligent supervision of employees did not allege that employees were acting outside the scope of employment or that defendant's employer knew that they might do so, and was dismissed for failure to state a cause of action.
Case information
| UID: | 2019-038-501 |
| Claimant(s): | JOHNATHAN JOHNSON 89-A-1042 |
| Claimant short name: | JOHNSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 118081 |
| Motion number(s): | M-92071 |
| Cross-motion number(s): | CM-92749 |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | JOHNATHAN JOHNSON, Pro se |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 2, 2019 |
| 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 that includes allegations that he and other inmates housed in the Special Housing Unit (SHU) at Upstate Correctional Facility (CF) were served inadequate food portions from April 2006 to February 2010 and that he continued to receive inadequate food portions after he filed grievances concerning the inadequate food portions. Following proceedings that disposed of three of five causes of action in the claim, defendant now moves to dismiss the remaining second and third causes of action for lack of subject matter jurisdiction and failure to state a cause of action. Claimant opposes the motion in the form of a cross motion "to dismiss the defendant's motion to dismiss . . . as being without merits" (Notice of Motion, filed August 24, 2018).
At the trial of this claim on June 8, 2016, claimant withdrew the fourth and fifth causes of action, and the first cause of action was dismissed after trial (see Johnson v State of New York, UID No. 2016-038-114 [Ct Cl, DeBow, J., Sep. 9, 2016]). Per stipulation of the parties, the second and third causes of action were held in abeyance. Defendant agreed to make certain changes to Upstate CF food services practices, and claimant agreed to conditional dismissal of the second and third causes of action if he did not submit any further communication about the prosecution those causes of action by December 8, 2016 (id., fn 1). By correspondence dated November 28, 2016, claimant requested vacatur of the conditional stipulation of dismissal of the second and third causes of action, which was granted (see "So Ordered" Correspondence, December 16, 2016).
Claimant's "cross motion" seeks no affirmative relief, and thus, his papers will be considered as opposition to defendant's motion and the cross motion will be denied as unnecessary.
The second cause of action alleges that civilian cooks at Upstate CF failed to follow "the Office of Nutritional Services General Confinement Portion List Menu Sizes, and suggested utensil sizes" for SHU inmates, including claimant, from April 2006 through February 2010 (see Claim number 118081, Second Cause of Action, ¶ 1). It asserts that the civilian workers failed to supervise inmate mess hall workers which resulted in claimant receiving nutritionally inadequate meals. The second cause of action further asserts that defendant's agents in the Department of Corrections and Community Service (DOCCS) and at Upstate CF have been put on notice about the inadequate food servings and that claimant has lost "a lot [sic] of weight" since 2006 (see id., ¶ 2). The third cause of action alleges that claimant filed numerous grievances concerning the inadequate food portions, that the inmate grievance committee directed claimant to promptly report food issues to superior correction officers so that the issues could be investigated and rectified (see id., Third Cause of Action, ¶ 2), but that no corrective action was taken. The third cause of action alleges that claimant received a lunch tray with inadequate food portions on February 10, 2010, that he informed the gallery officer and sergeant, and that the sergeant told claimant that he did not care about the grievance committee's decision and that claimant would not get another food tray. The third cause of action further alleges that claimant was again given inadequate food portions for his lunch meal on February 21, 2010, that he notified the gallery officer and sergeant, who both refused to exchange his lunch tray. The third cause of action asserts that claimant suffered personal injuries due to defendant's negligence, gross negligence, malicious and wanton acts, "intentional negligence," failure to follow DOCCS rules and regulations, and "failure to supervise subordinates and the facility" (id., ¶ 8).
Defendant argues that the Court lacks subject matter jurisdiction over the second and third causes of action because they challenge administrative determinations that must be reviewed in a proceeding pursuant to CPLR article 78. Defendant contends in the alternative that subject matter jurisdiction is lacking because the claim does not include factual details about the manner in which defendant failed to supervise its employees, or about the damage or injuries that claimant allegedly sustained, and thus it does not comply with the pleading requirements of Court of Claims Act § 11 (b). Finally, defendant argues that the claim fails to state a cause of action for negligent supervision because it does not allege that the employees were acting outside of the scope of their employment.
In opposition, claimant argues that the failure to perform an act within the scope of a state employee's duties may be brought in the Court of Claims under Correction Law § 24 and the doctrine of respondeat superior, that defendant has waived any objection to personal jurisdiction, and that the claim satisfies the substantive and jurisdictional pleading requirements of Court of Claims Act § 11 (b). Claimant also argues that the Court cannot consider the affirmation of defendant's counsel in support of defendant's argument that the claim should be dismissed for failing to state a cause of action unless it treats the motion as one for summary judgment.
Claimant's contention that defendant has waived any objection to subject matter jurisdiction over the claim is without merit, as objections to subject matter jurisdiction cannot be waived and may be raised at any stage of the action (see Financial Indus. Regulatory Auth., Inc. v Fiero, 10 NY3d 12, 17 [2008]). Claimant's further contention that defendant waived the defense of untimeliness with respect to the second cause of action, as asserted in the eighth affirmative defense in the verified answer, is impertinent as defendant does not seek dismissal for that reason.
To determine whether a claim for money damages arising from the actions of the State falls within the subject matter jurisdiction of the Court of Claims, the Court must make two inquiries:
"Initially, the threshold question in determining the subject matter jurisdiction of the Court of Claims is whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim. The second inquiry, regardless of how a claimant categorizes a claim, is whether the claim would require review of an administrative agency's determination - which the Court of Claims has no subject matter jurisdiction to entertain. Notably, an administrative agency's determination may be reviewed only in the context of a CPLR article 78 proceeding commenced in Supreme Court, and not in an action brought in the Court of Claims."
(Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d 1142, 1143-1144 [3d Dept 2009] [internal quotation marks and citations omitted], lv denied 12 NY3d 712 [2009]). The subject matter jurisdiction of the Court of Claims is limited to actions against the State for money damages in certain types of actions (see Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [3d Dept 1997], citing Court of Claims Act § 9 [2]; Psaty v Duryea, 306 NY 413, 417 [1954]). As pertinent here, Supreme Court has exclusive subject matter jurisdiction to review whether the actions of state officials "failed to perform a duty enjoined upon it by law" or were "in violation of lawful procedure, [were] affected by an error of law or w[ere] arbitrary and capricious or an abuse of discretion" (CPLR 7803 [1], [3]; see CPLR 7804 [b]). The essential nature of the claim is not necessarily defined by a party's characterization of the claim (see Buonanotte, supra at 1143; Madura v State of New York, 12 AD3d 759, 761 [3d Dept 2004], lv denied 4 NY3d 704 [2005]), but rests upon identification of the issues actually presented in the claim (see Sidoti v State of New York, 115 AD2d 202, 203-204 [3d Dept 1985]).
Here, notwithstanding that the claim seeks money damages, the issues raised by the claim and to be decided by the Court involve administrative actions of Upstate CF personnel in alleged contravention of DOCCS guidelines, and in violation of grievance determinations. Inasmuch as the claim would require judicial review of administrative determinations, including the application of DOCCS guidelines and grievance determinations, it should have been brought in a CPLR article 78 proceeding (see Johnson v State of New York, UID No. 2014-044-568 [Ct Cl, Schaewe, J., Nov. 20, 2014]; see also Campbell v State of New York, UID No. 2014-038-101 [Ct Cl, DeBow, J.,Feb. 7, 2014]; Johnson v State of New York, UID No. 2003-019-560 [Ct Cl, Lebous, J., Sep. 24, 2003] [cause of action alleging breach of DOCCS directives not viable]). Further, as claimant is well aware, this is not a dispute that is governed by traditional tort principles as "[t]here is no cognizable cause of action for compensatory damages for untimely or improper meal service, rather these are administrative issues covered by internal grievance protocols" (Johnson v State of New York, UID No. 2003-019-565 [Ct Cl, Lebous, J., Oct. 27, 2003]; see also Matter of Johnson v Fischer, 89 AD3d 1295 [3d Dept 2011] [denial of grievances concerning the service of incorrect food portions challenged in CPLR article 78 proceeding]). Therefore, the second and third causes of action will be dismissed for lack of subject matter jurisdiction.
Even if subject matter jurisdiction was not lacking, the claim would be dismissed as jurisdictionally defective because it fails to comply with the substantive pleading requirements of Court of Claims Act § 11 (b), which require 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" (Court of Claims Act § 11 [b]). To satisfy the "nature of the claim" requirement, the claim must state facts that are 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], quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). "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 section 11 (b) obligates the claimant to allege" (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotations and citations omitted]). Although the second cause of action asserts claimant was caused to lose "a lot [sic] of weight" due to the inadequate food portions (Claim number 118081, Second Cause of Action, ¶ 2), vague allegations of weight loss, without more, are insufficient to comply with Court of Claim Act § 11 (b) (see McKinney v State of New York, UID No. 2005-030-527 [Ct Cl, Scuccimarra, J., May 9, 2005]). The third cause of action is bereft of any allegation of injuries allegedly sustained as the result of the allegedly inadequate food portions, and is therefore jurisdictionally defective (see Johnson v State of New York, UID No. 2015-038-574 [Ct Cl, DeBow, J., Nov. 13, 2015]).
Finally, to the extent that claim asserts a cause of action for negligent supervision, the pleading lacks sufficient factual allegations in support of such a cause of action. On a motion to dismiss for failure to state a claim, "the court will 'accept 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])" (Nonnon v City of New York, 9 NY3d 825, 827 [2007]). In deciding a motion pursuant to CPLR 3211(a) (7), however, a court may freely consider affidavits submitted by the [claimant] to remedy any defects in the claim and "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Leon v Martinez, 84 NY2d at 88 [internal quotations and citations omitted]). The tort theory of negligent supervision may lie when employees were acting outside the scope of their employment and the employer knew or reasonably should have known of their propensity to engage in the conduct that caused claimant's injuries, and the alleged negligent training and supervision was a proximate cause of claimant's injuries (see Gray v Schenectady City School Dist., 86 AD3d 771, 773-774 [3d Dept 2011]).
The claim and claimant's affidavit submitted in response to defendant's motion lack any allegations that any Upstate CF employees acted outside the scope of their duties, or that DOCCS had actual or constructive notice that the employees would engage in conduct that was outside the scope of their duties. To the contrary, claimant argues in his affidavit that defendant can and should be held liable under the theory of respondeat superior, in which an employer may be held liable for the torts of its employees acting within the scope of their employment. Finally, claimant's argument that the Court cannot consider the affirmation of defendant's counsel in its motion to dismiss for failure to state a cause of action without converting the motion to one for summary judgment is misplaced as defendant is arguing that the pleading fails to state a cause of action and not that defendant is entitled to judgment as a matter of law on a viable cause of action.
Accordingly, it is
ORDERED, that defendant's motion number M-92071 is GRANTED and the remainder of claim number 119081 is DISMISSED; and it is further
ORDERED, that claimant's cross motion number CM-92749 is DENIED.
January 2, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim No. 118081, filed March 1, 2010; (2) Verified Answer, filed April 2, 2010; (3) Decision and Order in Johnson v State of New York, UID No. 2016-038-114 (Ct Cl, DeBow, J., Sep. 9, 2016); (4) Correspondence of Johnathan Johnson, dated November 28, 2016; (5) "So Ordered" Correspondence of the Hon. W. Brooks DeBow, Judge of the Court of Claims, dated December 16, 2016; (6) Notice of Motion to Dismiss, dated April 9, 2018; (7) Affirmation of Paul F. Cagino, AAG, in Support of Motion to Dismiss, dated April 9, 2018, with Exhibits A-B; (8) Correspondence of Johnathan Johnson, dated April 12, 2018; (9) "So Ordered" Correspondence of the Hon. W. Brooks DeBow, Judge of the Court of Claims, dated April 27, 2018; (10) Correspondence of Nancy Schulman, Principal Law Clerk, dated August 9, 2018; (11) Notice of Cross Motion, filed August 24, 2018; (12) Affidavit of Johnathan Johnson in Support of Cross Motion, sworn to August 21, 2018.