Opinion
# 2017-044-571 Claim No. 128540 Motion No. M-90434 Cross-Motion No. CM-90568
09-26-2017
DANIEL J. LADENHAUF v. THE STATE OF NEW YORK
DOUGLAS WALTER DRAZEN, ESQ. HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: James E. Shomeaker, Assistant Attorney General
Synopsis
Claim arising out of correction officer's employment with DOCCS dismissed due to untimeliness, lack of viability and lack of jurisdiction over the various causes of action.
Case information
| UID: | 2017-044-571 |
| Claimant(s): | DANIEL J. LADENHAUF |
| Claimant short name: | LADENHAUF |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has sua sponte amended the caption to reflect the State of New York as the sole proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128540 |
| Motion number(s): | M-90434 |
| Cross-motion number(s): | CM-90568 |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | DOUGLAS WALTER DRAZEN, ESQ. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: James E. Shomeaker, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 26, 2017 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed this claim alleging various causes of action arising out of his employment as a correction officer (CO) with the Department of Corrections and Community Supervision (DOCCS) at Sullivan Correctional Facility. Defendant State of New York (defendant) answered and asserted several affirmative defenses. Defendant now moves to dismiss the claim as untimely. Claimant opposes the motion and cross-moves to amend the claim to more fully describe defendant's allegedly wrongful conduct. Defendant replies and opposes the cross motion.
The Court will initially discuss the facts as set forth in all papers submitted in order to establish the procedural history of this claim before discussing the merits of either motion. On November 9, 2015, claimant served defendant with a notice of intention to file a claim. In the notice of intention, claimant alleges that the claim arose from November 3, 2009 through the present (presumably October 14, 2015, when the notice was executed). Claimant states that he has been subject to retaliation for seeking a beard exemption from his dermatologist, for attempting to engage in union related organizing, elections, and other supporting activities, and has been subject to continuous harassment, hazing, and an ongoing course of intentional mistreatment at the hands of superiors, creating a hostile, unsafe work environment, intended to humiliate and embarrass [c]laimant, to alienate his fellow officers from him, and diminish respect for him among the inmate population.
Notice of Intention executed October 14, 2015 at 1-2 (Defendant's Motion to Dismiss, Exhibit C).
Claimant further states that the conduct of his superior officers has taken place with the knowledge of their superiors as well as other DOCCS officials, and has put him and fellow officers at risk. He also alleges that it has impaired his ability to earn a living outside of the facility because the hostility created by the superiors' conduct has discouraged other officers from exchanging time with him as they had previously done. Claimant claims that he has suffered physical, psychological, economic and special damages.
In the claim, claimant alleges that he has been employed by DOCCS as a correction officer (CO) at Sullivan Correctional Facility for approximately 10½ years. Claimant states that in November 2009, his dermatologist "issued an excuse from shaving" based upon his chronic skin infections. Claimant asserts that his superior officer, Lieutenant John Hoefling, inquired how claimant could shave part of his face but not the other part, and indicated that claimant's excuse was "bullshit." Claimant alleges that when he told Hoefling that "he had gone through [the] proper channels, and . . . had HIPPA [sic] rights not to discuss or disclose anything about the condition . . . [Hoefling stated that] [i]f claimant really want[ed] to play this game with [him], [they would] play, and [Hoefling was] going to always win." Claimant indicates that Hoefling's harassment continued even after DOCCS issued him a beard exemption permit in January 2010. Claimant states that after he sought intervention from DOCCS officials outside of Sullivan, the harassment temporarily subsided, but Hoefling nonetheless told other employees that claimant was not a good officer and encouraged them to critique his work.
Claim, ¶ 4.
Id. (internal quotation marks omitted).
Id. (internal quotation marks omitted).
Claimant alleges that in late 2013, Captain Steven Urbanski accused him of violating the facility grooming standards by having his beard longer than 1/8 of an inch. When claimant replied that he had just shaved using his 1/8 inch shaving guard and that the Captain could measure his beard, Urbanski allegedly stated that claimant "[did] not want to go down that road with [him]." According to claimant, he believed that Urbanski was implying that claimant did not want to act the same way that he had with Hoefling. Claimant states that he felt threatened and embarrassed because a captain from another facility and other Sullivan officers were present.
Id., ¶ 6 (internal quotation marks omitted).
In October 2014, an inmate apparently made a complaint which mentioned claimant as well as another unidentified officer. Claimant alleges that the usual procedure would be to assign a sergeant to investigate the complaint. However, Hoefling investigated the complaint himself. Claimant notes that Hoefling also undertook other unusual measures during his investigation, such as requiring claimant to re-submit a narrative about the incident and compelling him to reveal the name of the other officer. According to claimant, neither was common practice at the facility. Claimant indicates that he was eventually cleared of any wrongdoing.
However, claimant asserts that two weeks later, Hoefling encountered him in the D and E corridor and admonished him for not being where he was assigned. Claimant states that he tried to explain that he was coming from Control Room D where he had obtained a new battery for his radio. Claimant alleges that contrary to facility procedure for counseling officers, Hoefling initiated the discussion in front of another lieutenant and several inmates. Claimant indicates that several days later and allegedly to further embarrass him, Hoefling directed another officer to further counsel claimant about the matter. Claimant alleges that he filed a grievance against Hoefling due to this incident. Claimant asserts that in order to impede and impair his ability to pursue the grievance, Urbanski was assigned as Hearing Officer and ruled in Hoefling's favor.
In opposition to defendant's motion, claimant states that he previously had filed a grievance against Urbanski which was still pending at the time he was assigned as Hearing Officer (see infra at 7).
Claimant states that shortly thereafter, Urbanski issued a memorandum which required any officer who wanted to access Control Room D to first obtain the watch commander's prior approval. Claimant notes that his watch commander was Hoefling. Claimant also indicates that the new requirement caused significant inconvenience to other officers because union related amenities which were stored inside the control room were no longer readily accessible. He further notes that Hoefling told the other officers that claimant was responsible for the inconvenience.
Claimant alleges that Hoefling subsequently convinced facility officials to move claimant's desk from an office (which he and other officers used) into the hallway he patrolled. Apparently, the office remains vacant and locked, and is no longer available for any officer to use. Claimant asserts that Hoefling's ongoing course of wrongful conduct continues to date (presumably August 18, 2016, when the claim was executed). Claimant also alleges that in May 2016, he found an anonymous handwritten threat against him. The note warned him to watch his back because there would be some unspecified problems. According to claimant, the note has caused him alarm and has distracted him from his duties.
Based upon all of the foregoing allegations, claimant asserts causes of action for intentional infliction of emotional distress, prima facie tort, an unspecified intentional tort, negligence, breach of employment contract, and violations of the State and Federal Constitutions.
Claimant has submitted an affidavit both in opposition to defendant's motion to dismiss as well as in support of his cross motion to amend the claim. In his affidavit, claimant states that Hoefling's harassment of him began in November 2009 when claimant applied to get a beard exemption because of a medically diagnosed skin condition. He indicates that he tried to stop the harassment by utilizing procedures through his union, DOCCS Directives, and the Public Officer's Law, all to no avail. Claimant maintains that because he had previously filed a grievance against Urbanski which was still pending, DOCCS officials should not have assigned Urbanski as Hearing Officer in the grievance against Hoefling. Claimant alternatively contends that Urbanski should have recused himself. Claimant asserts that if an impartial Hearing Officer had been assigned, the grievance may have turned out differently and Hoefling's harassment of him may have stopped or dissipated. Claimant also alleges that he has been treated unfairly because he has exercised his right to request information pursuant to Public Officer's Law § 94 (both in 2014 and "recently") in order to support his grievance.
The Court notes that in his affidavit, claimant objects to defendant's counsel's citation of case law in his affirmation in support of the motion to dismiss. Specifically, claimant argues that such conduct "gives the defense an unfair advantage with [the] Court, as . . . the motion is heard on submission, not oral argument. . . . [Claimant] also believe[s] it gives the defendant an unfair advantage with any appellate court, as such citations and argument that are not supposed to appear in an appellate record, will appear" (Affidavit of Daniel J. Ladenhauf, in Support of Cross Motion, sworn to June 5, 2017, ¶ 16). This argument is not persuasive. Claimant is correct in asserting that "affidavits are for the facts and briefs for the law" (Siegel, NY Prac § 246 at 429, n 6 [5th ed 2011]). However, this Court finds that defendant's citation to the law in counsel's affirmation rather than a separate brief has not caused claimant any prejudice. Notwithstanding that this motion was heard on submission, counsel for claimant was not precluded from submitting a brief (both in opposition to defendant's motion and in support of claimant's cross motion) at the same time he served the cross motion (see the Uniform Rules for the Court of Claims [22 NYCRR] § 206.9 [b]).
Affidavit of Daniel J. Ladenhauf, in Support of Cross Motion, sworn to June 5, 2017, ¶ 9.
Claimant states that Hoefling's conduct in placing him in a corridor - where he alleges it is cold enough to see his breath in the winter and roasting hot in the summer - and simultaneously removing his access to an office where the temperature was more moderate was done to intimidate him. He indicates that defendant has further attempted to intimidate him by conducting an investigation against him after he filed the notice of intention. Claimant does not believe defendant found anything against him as he states that he has always been a good officer and saved an inmate's life in 2015. He notes that after saving the inmate, he was required to pose for a commemorative photograph with Urbanski which he feels was another example of DOCCS officials intentionally mocking him.
Claimant also includes a proposed amended claim in support of his motion to amend. The proposed amended claim, while reiterating the allegations of the original claim, sets forth some clarification. With respect to the issue concerning access to Control Room D, claimant further alleges that Hoefling continues to bar officers from the control room and tells them that the lack of access was claimant's fault. Claimant also clarifies that he was denied his contractual right to have his grievance against Hoefling fairly decided because Urbanski was the Hearing Officer even though claimant's grievance against Urbanski was unresolved at the time. Claimant notes that in March 2016, after he served the notice of intention, superiors at the facility circulated the notice while mocking both it and claimant in an effort to intimidate him from acting upon the notice and to discredit and embarrass him.
The Court notes that claimant's statement does not appear to be accurate. In his appeal of Urbanski's determination of the grievance against Hoefling, claimant stated that the grievance against Urbanski had been withdrawn because "former Superintendent P. Griffin spoke to [Urbanski] and the harassment/intimidation stopped" (Claimant's Cross Motion to Amend, Exhibit 2 at 2).
Because it is potentially dispositive of the claim, the Court will initially address defendant's motion to dismiss. Defendant argues that the claim is untimely and should be dismissed as the notice of intention was not served within 90 days of the claim's accrual, and thus did not extend the time in which to file and serve a claim. Defendant asserts that the cause of action for intentional infliction of emotional distress cannot be maintained against the State as matter of public policy. Defendant also asserts that this Court lacks jurisdiction over the causes of action alleging violations of the Federal Constitution and further contends that because claimant has other available remedies, the cause of action for violation of the State Constitution should be dismissed.
Conversely, claimant states that Hoefling's harassment began in November 2009, but has continued to date as evinced by Hoefling's closure of the office claimant previously used in the corridor he patrols, Urbanski's failure to recuse himself as Hearing Officer, and the institution of an unfounded investigation against claimant after he filed his notice of intention. Claimant also argues that the wrongful conduct has been continuous, occurred less than three years ago, and has deprived him of his due process rights under the state and federal constitutions as well as his right under his employment contract to file a grievance and have it resolved.
In his first cause of action, claimant alleges that because the conduct against him was outrageous, extreme, and calculated to cause him emotional harm, defendant is guilty of intentional infliction of emotional distress. As defendant correctly notes, it is well-settled that public policy prohibits a claimant from asserting this cause of action against the State of New York (Brown v State of New York, 125 AD2d 750, 752 [3d Dept 1986], lv dismissed 70 NY2d 747 [1987]; see also Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]). Accordingly, the first cause of action is dismissed.
To the extent that claimant may be attempting to assert a cause of action for harassment, it must be dismissed. "New York does not recognize a common-law cause of action to recover damages for harassment" (Monreal v New York State Dept. of Health, 38 AD3d 1118, 1119 [3d Dept 2007]; see also Wells v Town of Lenox, 110 AD3d 1192, 1193-1194 [3d Dept 2013]).
Claimant further asserts a cause of action for prima facie tort as well as another unspecified intentional tort in his second and third causes of action, respectively. In an action to recover damages for personal injuries caused by the intentional conduct of an officer or employee of the State, a claim must be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the claim, unless a notice of intention to file a claim is served upon the Attorney General within 90 days after the accrual of such claim (Court of Claims Act § 10 [3-b]). If a notice of intention is timely served, a claim must be filed and served within one year of its accrual (id.).
As set forth previously herein, the notice of intention alleges an accrual date of November 3, 2009 through October 14, 2015 due to continuous harassment. Claimant does not set forth the specifics of the conduct or any dates on which the conduct occurred. With respect to the claim, the last date specifically set forth is October 2014, when claimant asserts that Hoefling investigated an inmate complaint that mentioned his name. Claimant thereafter states that after he was cleared of wrongdoing, Hoefling wrongfully admonished him for not being in his assigned patrol area and claimant initiated a grievance against him. Claimant notes in his affidavit that several days after Urbanski denied claimant's grievance, Hoefling caused claimant's desk to be moved to the corridor, and the office previously used by him was locked and no longer accessible to claimant or his fellow officers. Claimant does not provide any further information as to the exact dates in the claim. However, based upon information submitted with claimant's cross motion to amend the claim, it appears that Urbanski's decision denying the grievance was issued on December 1, 2014. The desk was removed and the office in the corridor was locked several days later. The notice of intention served on November 9, 2015 was served more than 90 days after December 1, 2014 and is untimely on its face.
He also states that shortly after determining the grievance, Urbanski separately issued a memo denying access to Control Room D.
However, claimant argues that Urbanski's and Hoefling's wrongful conduct continued through 2017. Specifically, claimant alleges in his amended claim that Hoefling's wrongful conduct in barring claimant from the control room and continuing to tell others it was his fault is a continuing wrong and tolls the limitations period of Court of Claims Act § 10. This contention is not persuasive. It is well-settled that the time in which to commence an action is extended in situations where there is a series or pattern of continuing wrongs (see e.g. Boland v State of New York, 30 NY2d 337 [1972]). Nevertheless, the application of the continuing wrong doctrine "may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct" (Selkirk v State of New York, 249 AD2d 818, 819 [3d Dept 1998]). In this instance, the allegedly wrongful conduct took place when Hoefling prevented claimant and his fellow officers from accessing the now vacant office in the corridor patrolled by claimant. As defendant aptly notes, claimant's allegation that he has continually been barred from that office "to date," is merely a continuation of damages resulting from the initial allegedly wrongful conduct of removing access to the office. These allegations are insufficient to toll the limitations period (id.). The continuing wrong doctrine is not applicable, and the notice of intention served on November 9, 2015 was not timely and did not extend the time in which to file and serve the claim. Accordingly, this claim served on September 9, 2016 and filed on September 16, 2016 is untimely with respect to both the second and third causes of action.
Claim, ¶ 20; see also Proposed Amended Claim, ¶ 20.
Claimant's fourth cause of action asserts that defendant was negligent based upon its employees acting or failing to act as they did with respect to claimant and as a result, he suffered various losses and damages. In the same manner as a claim alleging wrongful intentional conduct, an action to recover damages for personal injuries caused by the unintentional or negligent conduct of an officer or employee of the State, a claim must be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the claim, unless a notice of intention to file a claim is served upon the Attorney General within 90 days after the accrual of such claim (Court of Claims Act § 10 [3]). When a notice of intention is timely served, the time in which to file and serve a claim alleging negligence is extended until two years from the date of accrual. As set forth previously herein, the claim accrued at the latest, December 1, 2014. Claimant's notice of intention was not served within 90 days of the accrual and thus did not extend the time in which to file and serve the claim. Accordingly, the claim is also untimely with respect to a negligence cause of action.
Even if the claim was timely, all factual allegations contained therein (as well as those contained in the proposed claim), charge defendant's employees with intentional conduct. Claimant has not set forth any duty of care allegedly owed to him by defendant. Moreover, defendant has not alleged that the employees were acting outside of the scope of their employment as an affirmative defense. Accordingly, defendant's liability, if any, would be on the basis of respondeat superior and causes of action for negligent hiring, training or retention would not be viable (Ashley v City of New York, 7 AD3d 742, 743 [2d Dept 2004]; Rossetti v Board of Educ. of Schalmont Cent. School Dist., 277 AD2d 668 [3d Dept 2000]). Accordingly, the negligence cause of action is dismissed.
Claimant alleges in his fifth cause of action that by allowing Urbanski to preside over the grievance against Hoefling, defendant impeded claimant's right to use the grievance procedure in his employment contract and therefore violated his New York State Constitutional right to due process. Because claimant has other adequate remedies - either in the form of intentional torts in this Court or an action in Federal Court (see infra) - this Court need not recognize a tort cause of action under the State Constitution (see Martinez v City of Schenectady, 97 NY2d 78 [2001]). Thus, the fifth cause of action is dismissed.
Claimant's failure to timely assert these causes of action does not modify their existence as adequate remedies for the perceived constitutional violation.
Claimant alleges in his sixth cause of action that Urbanski's assignment as Hearing Officer also violated claimant's due process right under the Federal Constitution. In his seventh cause of action, claimant asserts that defendant's overall conduct toward him deprived him of his Fourteenth Amendment liberty interest to pursue a legal occupation as well as depriving him of his civil rights in violation of 42 USC § 1983. As defendant aptly notes, the Court of Claims has no jurisdiction to consider Federal Constitutional claims, including civil rights violations brought pursuant to 42 USC § 1983 (see e.g. Brown v State of New York, 89 NY2d 172, 184-185 [1996]). Accordingly, these two causes of action are also dismissed.
Claimant's eighth cause of action seeks recovery based upon an alleged breach of claimant's employment contract, again premised upon Hearing Officer Urbanski presiding over the grievance with an apparent conflict of interest. As is pertinent to this situation, Court of Claims Act § 10 (4) provides that "[a] claim for breach of contract, express or implied . . . shall be filed and served upon the attorney general within six months after the accrual of such claim," in which case the time in which to file and serve a claim would be extended to two years from the date of accrual. As set forth previously herein, Urbanski issued his decision in the grievance against Hoefling on December 1, 2014 and the cause of action accrued at the latest on that date (see e.g. Kronos, Inc. v AVX Corp., 81 NY2d 90, 94 [1993] [where the Court held that the cause of action accrues on the date of the contractual breach]). Claimant's notice of intention served on November 9, 2015 was not timely, having been served more than 90 days later, and thus did not extend the time in which to file and serve the claim. Accordingly, this claim served on September 9, 2016 and filed on September 16, 2016 is untimely. The eighth cause of action is therefore dismissed.
Moreover, even if this cause of action was timely, claimant has not provided a copy of the employment agreement containing the grievance procedure. "As a general proposition, when an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract" (Matter of Board of Educ., Commack Union Free School Dist. v Ambach, 70 NY2d 501, 508 [1987], cert. denied sub nom. Margolin v Board of Educ. Commack Union Free School Dist., 485 US 1034 [1988]; Matter of Sinacore v State of New York, 277 AD2d 675 [3d Dept 2000], lv denied 96 NY2d 706 [2001]). By not setting forth the entire grievance procedure, claimant has failed to establish his entitlement to sue defendant directly and thus invoke the jurisdiction of this Court. Accordingly, the eighth cause of action would nevertheless be dismissed.
The Court notes that the eighth cause of action in the proposed amended claim is also deficient. This cause of action alleges that defendant's conduct "constituted an unlawful and tortious interference with claimant's union contract" (Proposed Amended Claim, ¶ 38). As an initial matter, it appears that claimant has not attached the entire proposed amended claim to his cross motion papers. The eighth cause of action consists of only one paragraph. The next page is blank and is followed by the verification page. Notably, there is no final paragraph requesting damages (which itself is a fatal jurisdictional defect [see Kolnacki v State of New York, 8 NY3d 277, 281 (2007)]). In any event, it is unclear if there are any further allegations concerning the eighth proposed cause of action. Nevertheless, in order to prevail on a cause of action for tortious interference with contract, a claimant must establish "(1) the existence of a contract between [claimant] and a third party; (2) defendant's knowledge of the contract; (3) defendant's intentional inducement of the third party to breach or otherwise render performance impossible; and (4) damages to [claimant]" Kronos, 81 NY2d at 94). Although claimant refers to the contract as his union contract, he makes no allegations in either the claim or proposed amended claim with respect to any agreement he may have had with his union. Instead, his allegations appear to concern his employment contract with defendant, presumably which his union negotiated on his behalf. The appropriate cause of action is breach of contract, as claimant and defendant are the parties to this agreement. It is ludicrous to allege that defendant is guilty of inducing itself to breach the employment contract. --------
In conclusion, claimant's cause of action for intentional infliction of emotional distress cannot be maintained against defendant for public policy reasons. His remaining two intentional tort causes of action as well as the causes of action for negligence and breach of contract are untimely. Claimant's cause of action for violation of the New York State Constitution is not viable due to the existence of alternate adequate remedies. Lastly, this Court lacks jurisdiction over the two causes of action asserting violations of the Fourteenth Amendment of the Federal Constitution as well as violation of claimant's civil rights pursuant to 42 USC § 1983.
Accordingly, defendant's motion is granted and Claim No. 128540 is dismissed in its entirety. Because there is no pending claim before the Court, claimant's cross motion to amend the claim is denied as moot. In any event, the second, third, fourth, fifth and eighth causes of action - which are the only causes of action that could be properly adjudicated in this Court - are untimely and thus the claim is jurisdictionally defective. Because a claim cannot be amended to cure a jurisdictional defect, claimant's cross motion would have been denied on the merits as well (see Hogan v State of New York, 59 AD3d 754, 755 [3d Dept 2009]; Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983, 985 [3d Dept 1986]; Grande v State of New York, 160 Misc 2d 383, 385 [Ct Cl 1994]).
September 26, 2017
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on defendant's motion and claimant's cross motion: 1) Notice of Motion filed May 17, 2017; Affirmation of James E. Shoemaker, Assistant Attorney General (AAG), dated May 17, 2017, and attached exhibits. 2) Notice of Cross Motion filed June 12, 2017; Affidavit of Daniel J. Ladenhauf, sworn to June 5, 2017, and attached exhibits. 3) Affirmation in Opposition of James E. Shoemaker, AAG, dated June 8, 2017. Filed Papers: Claim filed September 16, 2016; Verified Answer filed October 21, 2016.