Opinion
# 2016-040-021 Claim No. 123377 Motion No. M-87655 Cross-Motion No. CM-87826
03-31-2016
ANTONIO OPPENHEIMER v. THE STATE OF NEW YORK
Antonio Oppenheimer, 94-A-5337, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG
Synopsis
Claimant's motion for summary judgment denied. State's cross-motion to dismiss granted in part.
Case information
| UID: | 2016-040-021 |
| Claimant(s): | ANTONIO OPPENHEIMER |
| Claimant short name: | OPPENHEIMER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123377 |
| Motion number(s): | M-87655 |
| Cross-motion number(s): | CM-87826 |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Antonio Oppenheimer, 94-A-5337, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | March 31, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, pro se Claimant's Motion for summary judgment in his favor, pursuant to CPLR 3212(a), is denied and Defendant's Cross-Motion to dismiss pursuant to CPLR 3211(a) (2), (7) and (8) granted in part and denied in part.
This pro se Claim, which was filed with the Clerk of the Court on October 21, 2013, alleges that, on June 11, 2013 at about 6:40 p.m., female Correction Officer (hereinafter, "CO") Schadel stopped Claimant from entering the recreational yard to perform a routine non-emergency pat-frisk of him in accordance with Department of Corrections and Community Supervision (hereinafter, "DOCCS") Directive #4910. At the time when CO Schadel stopped Claimant, he was wearing a kufi (prayer cap) on his head as a practicing Muslim. Claimant states that his religious beliefs forbid "sufficient physical contact between men and women outside of marriage" (Claim, ¶ 15), as recognized by DOCCS Directive #4910(III)(3)(a). Claimant asserts: that he requested that any of the three male COs present with CO Schadel perform the routine pat-frisk of him; that CO Schadel became belligerent, ignored Claimant's request, and ordered him to take off his kufi and shake it out; and then she proceeded to perform the pat-frisk. Claimant asserts he was confused, distressed, and went into a state of shock. In response to the CO's inquiries as to what his housing block was, all he could say was "east wing" (id.). Claimant then was escorted to his cell without further incident (see Ex. G attached to Claimant's Motion). On June 12, 2013, Claimant was issued a misbehavior report, dated June 11, 2013, charging him with violating two DOCCS rules with regard to the incident (id., and Ex. D attached to State's Cross-Motion).
A Tier II disciplinary hearing was commenced on June 13, 2013 (Ex. F attached to State's Cross-Motion) and an extension to complete the hearing by June 27, 2013 was granted on June 25, 2013 (Ex. E attached to State's Cross-Motion).
At the conclusion of the hearing on June 27, Claimant was found guilty of violating the rules against refusing a direct order and refusing a search or frisk (Ex. F attached to Cross-Motion). In making his determination, the hearing officer made the following statement of evidence relied upon:
The written misbehavior report and report writer's testimony that you failed to follow her directions to you and gave incomplete answers to questions asked. Officer's testimony that you did not request religious exemption to a female officer conducting the pat frisk (id.).
The hearing officer imposed a penalty of 30 days keeplock confinement, in addition to 16 days of pre-hearing confinement Claimant served (id.). On July 2, 2013, the Tier II hearing disposition was affirmed (Ex. F, p. 8 attached to Claimant's Motion).
Thereafter, Claimant commenced a CPLR Article 78 proceeding in Supreme Court, Albany County, which was transferred to the Appellate Division, Third Department, on April 30, 2014 (Ex. F, p. 1 attached to Claimant's Motion). By Expungement Notice, dated September 8, 2014, DOCCS ordered the hearing determination of June 27, 2013 reversed and expunged from all records (Ex. H attached to Claimant's Motion). The Appellate Division dismissed the matter as moot, as the hearing determination was administratively reversed (Matter of Oppenheimer v Griffin, 123 AD3d 1214 [3d Dept 2014]).
The Claim alleges four causes of action: (1) Defendant violated Correction Law § 610 by infringing upon Claimant's rights to freely practice his religion; (2) Defendant violated Claimant's Federal Constitutional rights to freely practice his religion; (3) Defendant violated Claimant's New York State Constitutional rights to freely practice his religion; and (4) Claimant was wrongfully confined to keeplock for 46 days when DOCCS rules provide that the maximum confinement for inmates found guilty of charges at a Tier II disciplinary hearing is 30 days (7 NYCRR § 253.7 [a] [1], [ii] & [iii]) (Claim, ¶¶ 7-14).
The Court will address Defendant's Cross-Motion to dismiss first. Addressing the cause of action asserting that the State violated the provisions of Correction Law § 610, Defendant asserts that exclusive jurisdiction for a cause of action asserted pursuant to Correction Law § 610 rests in Supreme Court, not the Court of Claims (Affirmation in Opposition of Michael T. Krenrich, Esq., Assistant Attorney General, ¶ 20). As stated by Judge Judith A. Hard in Powell v State of New York (UID No. 2014-032-014 [Ct Cl, Hard, J., Apr 25, 2014]):
Correction Law § 610 (3) provides, in relevant part, that "[i]n case of a violation of any of the provisions of this section any person feeling himself aggrieved thereby may institute proceedings in the supreme court of the district where such institution is situated." Accordingly, to the extent claimant may be asserting a cause of action for violation of Correction Law § 610 (1), the Court of Claims has no jurisdiction and such a cause of action must be dismissed.
To the extent that Claimant's allegations assert deprivations under the Federal Constitution, no action may be maintained in this Court against the State for alleged Federal constitutional violations (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1151 [3d Dept 2009]; Lyles v State of New York, 194 Misc 2d 32, 35-36 [Ct Cl 2002], affd 2 AD3d 694, 696 [2d Dept 2003], affd on other grounds 3 NY3d 396 [2004]; Matter of Thomas v New York Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723 [3d Dept 1981], affd 56 NY2d 656 [1982]). To the extent that Claimant asserts Federal constitutional violations, his remedy lies elsewhere.
In Brown v State of New York (89 NY2d 172 [1996]), the Court of Appeals "recognized that, when certain requirements are met, a violation of the [New York State] Constitution may give rise to a private cause of action" (Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; see Wagoner v State of New York, UID No. 2008-029-014 [Ct Cl, Mignano, J., Apr. 2, 2008]). In Martinez v City of Schenectady (97 NY2d 78 [2001]), however, the Court of Appeals made it clear that Brown establishes a "narrow remedy," applicable in cases where no other remedy is feasible to provide citizens with "an avenue of redress" when their private interests have been harmed by constitutional violations (Martinez v City of Schenectady, supra at 83; Waxter v State of New York, supra at 1181). Where an adequate remedy could be provided, however, " 'a constitutional tort claim … is [not] necessary to effectuate the purposes of the State constitutional protections … [invoked] nor appropriate to ensure full realization of [claimants'] rights' " (Bullard v State of New York, 307 AD2d 676, 679 [3d Dept 2003], quoting Martinez v City of Schenectady, supra at 83).
In the present case, recognition of the State constitutional cause of action is neither necessary nor appropriate to ensure the full realization of Claimant's rights, because the alleged wrongs could have been redressed by an alternative remedy, namely, either in a Federal Court action asserting violations of the Federal Constitution, or in an action pursuant to Correction Law § 610 in Supreme Court, Ulster County, which is the county where Eastern NY Correctional Facility is located. Thus, the cause of action alleging violations of Claimant's State constitutional rights is dismissed.
The Court now turns to the cause of action alleging wrongful confinement to keeplock for 46 days. Claimant asserts that the maximum penalty he could receive at a Tier II hearing is 30 days and that he already had served 16 days in keeplock from the time the incident occurred to completion of the hearing, after which the hearing officer imposed 30 additional days (Claim, ¶ 8). Defendant seeks to dismiss that portion of the Claim on the basis it was not timely served upon Defendant and filed with the Court within 90 days of accrual as required by Court of Claims Act § 10(3-b) for actions alleging intentional torts, such as a cause of action for wrongful confinement. A cause of action for wrongful confinement accrues when the restrictive confinement ends (Matter of Kairis v State of New York, 113 AD3d 942 [3d Dept 2014]; Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]; Santiago v City of Rochester, 19 AD3d 1061 [4th Dept 2005], lv denied 5 NY3d 710 [2005]; Charnis v Shohet, 2 AD3d 663 [2d Dept 2003]). Here, based upon Claimant's statements in the Claim, his confinement ended on July 27, 2013 (see Claim, ¶ 9). The Claim was served and filed on October 21, 2013 (see Answer, ¶ 25 and Ex. A attached thereto), within 90 days of accrual of the wrongful confinement cause of action. Thus, the portion of the motion which seeks to dismiss the wrongful confinement cause of action as untimely is denied.
Defendant further seeks dismissal of the wrongful confinement cause of action pursuant to CPLR 3211(a)(7), on the basis that the wrongful confinement cause of action fails to state a cognizable cause of action, rather than making a motion for summary judgment pursuant to CPLR 3212. No notice has been given by this Court pursuant to CPLR 3211(c) that would fairly advise the parties that the motion was being converted from a motion to dismiss to a summary judgment motion, or the issues that would be deemed dispositive of the action. Additionally, it cannot be said that the parties have deliberately charted a summary judgment course on the State's Cross-Motion (Henbest & Morrisey v W.H. Ins. Agency, 259 AD2d 829 [3d Dept 1999]; Four Seasons Hotels v Vinnik, 127 AD2d 310, 318, 320 [1st Dept 1987]). On a motion to dismiss a claim pursuant to CPLR 3211 (a) (7) the court must "accept the 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]; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Dee v Rakower, 112 AD3d 204, 208 [2d Dept 2013]). Thus, the determination is made by reference to whether "the proponent of the pleading has a cause of action, not whether he has stated one" (id. at 88 [quotation marks and citations omitted]).
Here, Claimant's allegations that he was wrongfully confined for 16 days beyond the maximum 30 days allowed by the State's regulations (7 NYCRR §253.7 [a][1][iii]) do not consist of base legal conclusions nor are they flatly contradicted by documentary evidence. The result is that, in determining this motion to dismiss, the Court must accept the allegations of the Claim as true and ignore opposing affidavits (Griffin v Anslow, 17 AD3d 889, 891-892 [3d Dept 2005]; Henbest & Morrisey v W.H. Ins. Agency, supra at 830; Matter of Morey v City of Gloversville, 203 AD2d 625, 626 [3d Dept 1994]). Claimant asserts that Defendant wrongfully confined him. That is a cognizable cause of action. Defendant's legal arguments regarding why the time Claimant was confined to keeplock, prior to completion of the disciplinary hearing, does not count toward his disciplinary confinement may be the basis of a different motion but does not result in Claimant's factual averments not stating a cognizable cause of action for wrongful confinement. Therefore, the portion of the Cross-Motion to dismiss the Claim for failure to state a cause of action, pursuant to CPLR 3211(a)(7), is denied.
The Court does agree with Defendant that Claimant's Claim does not allege any facts that state a cause of action based upon the hearing officer's denial of a witness at the disciplinary hearing.
The Court now turns to Claimant's Motion for summary judgment. Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to a motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
The only cause of action remaining after addressing the State's Cross-Motion to dismiss is the wrongful confinement cause of action. Claimant alleges that the maximum keeplock time that could be imposed by the Tier II hearing officer as a penalty for being found guilty of a rules infraction was 30 days ( 7 NYCRR §253.7 [a][1][iii]). He alleges that he was placed in keeplock for 46 days, which includes 16 days pre-hearing confinement (see 7 NYCRR § 251-1.6 [a]). However, Claimant failed to submit any documentary proof to establish that time spent in keeplock prior to completion of the Tier II hearing pursuant to 7 NYCRR § 251-1.6 (a) should be credited toward the 30-day maximum keeplock penalty that can be imposed by a Tier II hearing officer upon a finding of guilt pursuant to 7 NYCRR § 253.7 (a)(1)(iii). The Court finds that Claimant has failed to make a prima facie showing of entitlement to judgment as a matter of law regarding the allegations contained in the wrongful confinement cause of action.
March 31, 2016
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Claimant's Motion for Summary Judgment and Defendant's Cross-Motion to Dismiss: Papers Numbered Notice of Motion, Affidavit in Support and Exhibits Attached 1 Notice of Cross-Motion, Affirmation and Exhibits attached 2 Claimant's Reply 3 Filed Papers: Claim, Verified Answer