Opinion
No. 127058.
03-31-2016
Detroy LIVINGSTON, Claimant, v. The STATE of New York, Defendant.
Detroy Livingston, pro se. Hon. Eric T. Schneiderman, New York State Attorney General by Ray A. Kyles, Esq. Assistant Attorney General, for defendant.
Detroy Livingston, pro se.
Hon. Eric T. Schneiderman, New York State Attorney General by Ray A. Kyles, Esq. Assistant Attorney General, for defendant.
RENÉE FORGENSI MINARIK, J.
The following papers were read on motion by Defendant for dismissal of the claim:
1.Defendant's Notice of Motion, filed November 30, 2015;
2.Affirmation of Ray A. Kyles, Esq., dated November 27, 2015, with exhibits;
3.Claimant's Affidavit in Opposition, sworn to December 16, 2015;
4.Filed Documents: Claim.
With this motion, filed in lieu of an answer, Defendant requests that the Court dismiss Claimant's action for failing to set forth a viable cause of action over which this Court has jurisdiction.
In his claim, filed on November 16, 2015, Mr. Livingston alleges that on August 16 and 17, 2015, he was denied his right to exercise his religion. He also alleges that when he filed a grievance about these violations, he was subjected to harassment, retaliation and illegal confinement for 21 days. Mr. Livingston seeks $20,100.00 in damages.
As Defendant correctly points out, although freedom of religious expression is guaranteed by both the United States Constitution (1st Amendment) and the New York State Constitution (Article 1, § 3 ), alleged violations of those rights will not generally support a cause of action for money damages in the Court of Claims. First, a cause of action under the Federal Constitution is not cognizable in this Court (see Ferrer v. State of New York, 172 Misc.2d 1, 5 [Ct Cl 1996] ; Gill v. State of New York, UID No.2001–029–042 [Ct Cl, Mignano, J., Jan. 10, 2001] ).
Similarly, although the Court of Appeals recognized a cause of action for a violation of the New York State Constitution in Brown v. State of New York (89 N.Y.2d 172 [1996] ), courts have consistently determined that a constitutional tort remedy will not be implied when adequate alternative remedies exist ( Augat v. State of New York, 244 A.D.2d 835, 837 [3d Dept 1997] ; lv denied 91 N.Y.2d 814 [1998] ; Remley v. State of New York, 174 Misc.2d 523 [Ct Cl 1997] ). In this matter, Mr. Livingston could have, and apparently did, avail himself of the inmate grievance process. He also could have commenced an Article 78 proceeding (Matter of Hakeem v. Wong, 223 A.D.2d 765 [3d Dept 1996], lv denied 88 N.Y.2d 802 [1996] ; 7 NYCRR 701.1 et seq. ). While Claimant may not have been satisfied with the results of these alternative remedies, this fact alone does not create jurisdiction over such matters in this Court.
Persons in the custody and control of the Department of Corrections and Community Supervision are "entitled to the free exercise and enjoyment of religious profession and worship, without discrimination or preference" ( Correction Law § 610[1] ). That statute, however, provides a specific remedy for those who believe that their rights have been improperly infringed, requiring them to "institute proceedings in the supreme court of the district where such institution is situated" ( Correction Law § 610[3] ). Accordingly, the statute does not give rise to a private right of action for money damages against the State in the Court of Claims. The appropriate course of action for an aggrieved inmate is to first exhaust their administrative remedies through the inmate grievance process and, if unsuccessful, then commence an Article 78 proceeding in Supreme Court (Matter of Patterson v. Smith, 53 N.Y.2d 98 [1981] ; Matter of Shahid v. Coughlin, 83 A.D.2d 8, 10 –11 [3d Dept 1981], affd 56 N.Y.2d 987 [1982] ).
Alternatively, as the Defendant points out, in a claim such as this such as this, Court of Claims Act (CCA) § 11(b) requires that a claim state the time when and place where it arose, the nature of the claim, and the items of damage or injuries claimed to have been sustained. These are substantive jurisdictional requirements ( Lepkowski v. State of New York, 1 NY3d 201 [2003] ) and failure to satisfy these requirement will result in dismissal ( Cobin v. State of New York, 234 A.D.2d 498 [2d Dept 1996] ).
In his response to this motion, Claimant does not dispute the alleged pleading deficiencies of the claim, but requests that Defendant's motion be denied because the pleading defects have been cured with information contained in his affidavit. However, "[I]t is axiomatic that the sufficiency of a claim rests solely upon the assertions contained therein, and defendant is not required to go beyond the claim in order to investigate an occurrence or ascertain information that should have been provided pursuant to Court of Claims Act § 11 (citation omitted)" ( Lepkowski v. State of New York, 302 A.D.2d 765, 766 [3d Dept 2003], affd 1 NY3d 201 [2003] ). Further, a failure to satisfy the jurisdictional requirements of CCA § 11(b) cannot be cured by amendment (see Kolnacki v. State of New York, 8 NY3d 277 [2007] ; Hogan v. State of New York, 59 AD3d 754 [3d Dept 2009] ).
The claim fails to indicate where the alleged incidents occurred. For this reason, I find that the claim does not comply with CCA § 11(b). Accordingly, it is hereby
ORDERED, that Defendant's motion is granted. The claim is hereby dismissed in its entirety.