Opinion
# 2017-032-048 Claim No. None Motion No. M-89873
09-29-2017
MARLON LINGO v. THE STATE OF NEW YORK
Novo Law Firm, P.C. By: Michael A. Simon, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Paul F. Cagino, Assistant Attorney General, Of Counsel
Synopsis
Motion for late claim relief pursuant to Court of Claims Act § 10 (6) is granted in part.
Case information
| UID: | 2017-032-048 |
| Claimant(s): | MARLON LINGO |
| Claimant short name: | LINGO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended to reflect the only properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-89873 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Novo Law Firm, P.C. By: Michael A. Simon, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Paul F. Cagino, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | September 29, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant, an inmate in the custody of the Department of Corrections and Community Supervision (hereinafter DOCCS), seeks permission to file and serve a late claim alleging, among other things, wrongful confinement, assault, medical negligence, and various civil rights violations on the part of DOCCS employees. Defendant opposes the motion on the grounds that movant has failed to establish the required elements for late claim relief pursuant to Court of Claims Act § 10 (6) and, moreover, the proposed claim is jurisdictionally defective inasmuch as it fails to satisfy the pleading requirements of Court of Claims Act § 11 (b).
In a proposed claim dated January 23, 2017, movant alleges the following facts. On August 9, 2016, movant was assaulted by certain corrections officers at Greene Correctional Facility and was thereafter denied medical treatment for injuries that he sustained in said assault. On September 13, 2016, while being wrongfully confined in solitary confinement, movant was again assaulted and was the victim of cruel and unusual punishment perpetrated by certain corrections officers "for a continuous and uninterrupted period" (Proposed Claim ¶ 3). Following his transfer to Upstate Correctional Facility on or about December 5, 2016, and a subsequent transfer to Bare Hill Correctional Facility, movant continues to be wrongfully confined in solitary confinement and suffer assault, battery, and excessive use of force by certain corrections officers. Movant further states that the foregoing allegations of mistreatment are the result of the negligence, recklessness, and carelessness of DOCCS in failing to properly hire, supervise, and train its employees.
As alleged, movant's proposed causes of action accrued, at the earliest, on August 9, 2016. Accordingly, because his motion seeking permission to file and serve a late claim was filed and served upon defendant on January 25, 2017, his causes of action are timely under CPLR article 2 (see Court of Claims Act § 10 [6]; CPLR 214; 214-a; 215). Therefore, the Court must consider whether: (1) the delay in filing the claim was excusable; (2) the State had notice of the essential facts constituting the claim; (3) the State had an opportunity to investigate the circumstances underlying the claim; (4) the State was substantially prejudiced by the delay; (5) claimant has any other available remedy; and (6) the claim appears to be meritorious (see Court of Claims Act § 10 [6]). While the presence or absence of any one of these factors is not dispositive (see Williams v State of New York, 133 AD3d 1357 [4th Dept 2015]), the last factor is generally the most decisive inasmuch as "'it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant's motion'" (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], affd sub nom Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]).
As to the first factor, movant contends that his failure to timely file a claim is excusable because such failure was due to mailing complications and a lack of access to legal resources while incarcerated. It is well settled, however, that limited access to legal materials due to confinement in a correctional facility is not an acceptable excuse for failing to timely file and serve a claim or a notice of intention to file a claim (see Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; Matter of Thomas v State of New York, 272 AD2d 650, 651 [3d Dept 2000]). Accordingly, this factor weighs against granting the motion. Nevertheless, the absence of an excuse for late filing is only one of the factors considered by the Court in reviewing a late claim application and does not necessarily preclude the relief sought here (see generally Williams v State of New York, 133 AD3d at 1357).
The three factors of defendant's notice of and opportunity to investigate the essential facts constituting the claim and the lack of substantial prejudice to be incurred by granting late claim relief are frequently analyzed together since they involve similar considerations. Here, movant contends that defendant was sufficiently apprised of and given an opportunity to investigate the asserted causes of action by way of reports and various correspondence regarding his alleged mistreatment. Together with his motion, movant attaches an Inmate Misbehavior Report dated August 9, 2016, in which he was accused of fighting with another inmate, and the administrative appeal therefrom, in which movant contends that he was the victim of an unprovoked attack by the other inmate and corrections officers (Exhibits E-F). Additionally, movant submits detailed correspondence from his mother, alerting DOCCS staff to her son's mistreatment at Greene Correctional Facility (Exhibits G, I). Defendant does not dispute these assertions, but contends that the grievances and correspondence were insufficient to put DOCCS on notice of the essential facts of the proposed claim. The Court disagrees. The August 9, 2016 incident, which resulted in a disciplinary hearing, together with movant's appeal of that determination and correspondence regarding his alleged abuse by prison staff, certainly provided defendant with notice of the essential facts constituting the proposed claim, and provided it with an opportunity to investigate the circumstances surrounding the alleged causes of action (see Quick v State of New York, UID No. 2016-009-023 [Ct Cl, Midey Jr., J., Jun. 30, 2016]). Accordingly, the Court finds that these three factors weigh in favor of granting the motion.
With respect to the factor of alternative remedies, however, the Court disagrees with movant's contention that he has no other adequate available remedy. It is well settled that the proper procedure to challenge acts by DOCCS employees is by way of the inmate grievance procedure and, if such grievances are denied, commencing a proceeding in Supreme Court pursuant to CPLR article 78 (see Smith v State of New York, UID No. 2003-019-514 [Ct Cl, Lebous, J., February 18, 2003]; Campolito v State of New York, UID No. 2000-015-507 [Ct Cl, Collins, J., April 27, 2000]). Furthermore, if such grievances are unsuccessful, movant may commence an action in the United States District Court alleging a civil rights violation under 42 USC § 1983 (see Rivera v Goord, 253 F Supp 2d 735, 746 [SDNY 2003]). Accordingly, this factor weighs against the granting of the motion.
Turning then to the final factor, in order to establish a meritorious cause of action, movant must establish that his claim is not "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Court of Claims Act § 10 [6]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). "While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require [m]ovant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit [him] to file a late claim" (Williams v State of New York, UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]; see Matter of Santana v New York State Thruway Auth., 92 Misc 2d at 11-12).
Here, the Court finds that movant has met his minimal burden of establishing the appearance of merit solely with respect to his cause of action sounding in assault. In the prison setting, it is clear that "no officer or other employee of [DOCCS] shall inflict any blows whatever upon any inmate, unless in self defense, or to suppress a revolt or insurrection" (Correction Law § 137 [5]). "Where it is necessary to use physical force, only such degree of force as is reasonably required shall be used" (7 NYCRR 251-1.2 [b]). Here, given that it is undisputed that an incident occurred on August 9, 2016 involving several correction officers in their efforts to restrain movant, the issue is limited to whether the correction officers used excessive force in their efforts to do so (see Quick v State of New York, UID No. 2016-009-023 [Ct Cl, Midey Jr., J., Jun. 30, 2016]). Based upon the allegations set forth in his proposed claim with regard to the use of force, this Court finds that movant has satisfied the minimal standards for purposes of this application.
With respect to movant's remaining causes of action, however, his motion for late claim relief must be denied. Turning first to his allegations that he was not afforded proper medical care following the alleged assault on August 9, 2016, "[w]hether [a] claim is grounded in negligence or medical malpractice, where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical testimony is a required element of a prima facie case" (Myers v State of New York, 46 AD3d 1030, 1031 [3d Dept 2007] [internal quotations and citations omitted]; see Knight v State of New York, 127 AD3d at 1435; Wood v State of New York, 45 AD3d 1198, 1198 [3d Dept 2007]). Further, in the context of late claim applications, "when the proposed claim asserts a cause of action requiring an expert opinion in order to be established, an affidavit of merit from a qualified expert should be included with the application" (Rosario v State of New York, 8 Misc 3d 1007 [A], *11 [Ct Cl 2005]; see Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]). Here, as movant has made no submission in support of his claim for medical malpractice and/or medical negligence, he is not entitled to late claim relief for said cause of action.
Second, movant alleges causes of action based upon wrongful confinement due to "retaliatory infractions and unwarranted disciplinary tickets" (Proposed Claim). To establish a claim for a wrongful confinement, claimant must prove that "(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]). Formal inmate disciplinary proceedings conducted by prison officials "in full compliance with the governing statutes and regulations . . . constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity" (Arteaga v State of New York, 72 NY2d 212, 214 [1988]; Varela v State of New York, 283 AD2d 841 [3d Dept 2001]). Thus, it is well-established that the State cannot be held liable where there is no allegation that the prison official acted in contravention of established rules and regulations while conducting disciplinary proceedings (Holloway v State of New York, 285 AD2d 765, 766 [3d Dept 2001]. The exhibits submitted by movant demonstrate that disciplinary proceedings took place, (Exhibit C), but the claim itself fails to allege how any prison official at Greene Correctional Facility acted in contravention of establish rules and regulations. Movant admits in his Reply Affirmation that "[t]he circumstances surrounding [his] continuous solitary confinement are still unclear and more discovery is necessary[,]" and asserts without any supporting facts that his confinement was due to "independent decisions by the correctional officers or even retaliatory actions" (Reply Affirmation, ¶ 59). This conclusory allegation is insufficient to demonstrate the merit of his wrongful confinement claim, and the Court finds that he is not entitled to late claim relief on this claim (see Ramos v State of New York, UID No. 2016-015-161 [Ct Cl, Collins, J., Oct. 5, 2016]); Rivera v State of New York, 52 AD3d 1075, 1075 [3d Dept 2008]).
Third, movant alleges causes of action for negligent hiring, training and supervision. To sustain a cause of action for negligent hiring, training and supervision, movant must allege that the employees in question were acting outside the scope of their employment (Johnson v State of New York, UID No. 2015-038-573 [Ct Cl, DeBow, J., Nov. 13, 2015], citing Passucci v Home Depot, Inc., 67 AD3d 1470, 1472 [4th Dept 2009]; see also Gray v Schenectady City School Dist., 86 AD3d 771, 773-774 [3d Dept 2011). The proposed claim fails to assert that any employees of the State were acting outside the scope of their employment. Thus, movant is not entitled to late claim relief for the causes of actions alleged for negligent hiring, training and supervision.
To the extent that movant alleges a claim of intentional infliction of emotional distress, such a claim against the State is prohibited as against public policy (Ellison v City of New Rochelle, 62 AD3d 830 [2d Dept 2009]).
Finally, movant alleges violations of his Federal and New York State constitutional rights. To the extent that movant alleges violations of his rights under the Federal Constitution, this Court lacks subject matter jurisdiction over such claims, as they must be brought pursuant to 42 USC § 1983 and may not be maintained in the Court of Claims, given that the State is not a "person" for purposes of the statute (see Brown v State of New York, 89 NY2d 172, 185 [1996]; Zagarella v State of New York, 149 AD2d 503, 504 [2d Dept 1989]; Ohnmacht v State of New York, 14 Misc 3d 1231 [A], at *2 [Ct Cl 2007]). To the extent that movant seeks to allege State constitutional torts, the Court finds that "[r]ecognition of a constitutional tort claim here is neither necessary to effectuate the purposes of the State constitutional protections [claimant] invokes, nor appropriate to ensure full realization of [his] rights" (Martinez v City of Schenectady, 97 NY2d at 83; compare Brown v State of New York, 89 NY2d at 192). Movant's "constitutional tort allegations may be analogized to existing common-law torts for which there are adequate alternate remedies" (Augat v State of New York, 244 AD2d 835 [3d Dept 1997], lv denied 91 NY2d 814 [1998]). Because alternate remedies were available to claimant, it is not necessary for this Court to recognize a cause of action under the State Constitution (Martinez v City of Schenectady, 97 NY2d 78 at 83; Brown v State of New York, 89 NY2d at 184-185).
CONCLUSION
Based upon the foregoing, it is hereby
ORDERED, that movant's motion (M-89873) is granted in part and movant is directed to file and serve a verified claim identical to the claim provided in support of this motion, except that the claim to be filed shall assert only a cause of action for assault and battery, in compliance with the Court of Claims Act, including the payment of a filing fee in accordance with section 11-a thereof, within forty-five (45) days of the filing of this Decision and Order.
September 29, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion for Permission to File a Late Claim, dated January 23, 2017; Affirmation in Support of Motion to File a Late Claim, affirmed by Michael A. Simon, Esq., on January 23, 2017, with Exhibits A through J annexed thereto. 2. Affirmation in Opposition to Claimant's Motion, affirmed by Paul F. Cagino, AAG, on April 3, 2017. 3. Reply Affirmation, affirmed by Michael A. Simon, Esq., on June 21, 2017.