Opinion
# 2015-041-018 Claim No. 125214 Motion No. M-86010
02-23-2015
SHARELLE PENN-PARKS v. THE STATE OF NEW YORK
NONE HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Paul F. Cagino, Esq. Assistant Attorney General
Synopsis
Claim alleging that defendant violated claimant's due process rights by suspending her privilege to visit inmate is dismissed where claimant has adequate alternative remedy in CPLR Article 78.
Case information
| UID: | 2015-041-018 |
| Claimant(s): | SHARELLE PENN-PARKS |
| Claimant short name: | PENN-PARKS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended to state the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125214 |
| Motion number(s): | M-86010 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | NONE |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Paul F. Cagino, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 23, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the claim for lack of subject matter jurisdiction, failure to state a cause of action and lack of personal jurisdiction. Claimant has not opposed the defendant's motion.
The claim alleges that defendant is "discriminating against the claimant for practicing her first amendment (religion) and depriving claimant of her due process."
In particular, claimant alleges that on August 9, 2014 she was denied visitation with an inmate at Eastern Correctional Facility by the New York State Department of Corrections and Community Supervision (DOCCS), without explanation.
Attached to the claim filed by claimant with the Clerk of the Court of Claims is a letter DOCCS sent to claimant on August 8, 2014, via certified mail, return receipt requested, notifying claimant that her "visiting privileges are suspended because, during the course of your FRP [Family Reunion Program] visitation on 12/15/13 at Eastern New York Correctional Facility, you falsely identified yourself as inmate Lamar Jones' sister." The DOCCS letter further advised claimant of her right to appeal the suspension in writing or, alternatively, to challenge the suspension in a hearing in which claimant had the right to be represented by counsel, at her expense, and at which she could present evidence and call witnesses in her behalf.
Documents attached to the claim indicate that claimant chose to appeal the suspension in writing. The disposition of claimant's appeal of the suspension is unknown.
The jurisdiction of the Court of Claims is invoked where money damages are the essential object of the claim, unlike an instance where the principal claim is equitable in nature (such as to review action or inaction by a state agency), with monetary relief being incidental to the principal claim (see Harvard Fin. Servs. v State of New York, 266 AD2d 685, 685 [3d Dept 1999]; Matter of Gross v Perales, 72 NY2d 231, 236 [1988]).
In City of New York v State of New York (46 AD3d 1168, 1169-1170 [3d Dept 2007], lv denied 10 NY3d 705 [2008]), the court explains that:
"Two inquiries must be made to determine if the Court of Claims has subject matter jurisdiction. As that court has 'no jurisdiction to grant strictly equitable relief' (Psaty v Duryea, 306 NY 413, 416 [1954]), but may grant incidental equitable relief so long as the primary claim seeks to recover money damages in appropriation, contract or tort cases (see Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [1997]), 'the threshold question is "[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim"' (Madura v State of New York, 12 AD3d 759, 760 [2004], lv denied 4 NY3d 704 [2005], quoting Matter of Gross v Perales, 72 NY2d 231, 236 [1988]). 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 (see Hoffman v State of New York, 42 AD3d 641, 642 [2007]), as review of such determinations are properly brought only in Supreme Court in a CPLR article 78 proceeding (see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 [1991])."
Here, claimant challenges the administrative action of the Department of Corrections and Community Supervision (DOCCS) in allegedly suspending her right to exercise visitation privileges. The appropriate remedy for such a challenge is a CPLR article 78 proceeding (see Matter of Grigger v Goord, 27 AD3d 803 [3d Dept 2006], lv denied 7 NY3d 702 [2006]: "[w]hile prison inmates do not have a right to visitation that is protected by the federal or state constitution . . . the privilege of visitation afforded by the applicable regulations . . . can be restricted . . . and both visitors and inmates have the right to administrative and judicial review of such a restriction").
The point is made clear in Matter of Sylvester v Goord (37 AD3d 888 [3d Dept 2007], lv denied 8 NY3d 812 [2007]), a CPLR Article 78 proceeding in which the court confirmed, based upon substantial evidence, an administrative hearing determination of the DOCCS Commissioner which revoked the visitation privileges of the wife of an inmate because the wife had mailed to the inmate a typewriter with three cell phones concealed inside, allegedly "to be used in connection with an escape" (37 AD3d at 888).
Here, the claimant seeks review of an administrative action of DOCCS. The Court lacks subject matter jurisdiction over the claim.
Claimant asserts violation of her "first amendment (religion) and [that defendant is] depriving claimant of her due process." As set forth above claimant was provided a process to challenge the administrative action.
The Court again notes that the law is clear that "[i]nmate visitation is not a liberty interest entitled to the protection of either the federal or state constitutions" (Matter of Encarnacion v Goord, 8 AD3d 850, 852 [3d Dept 2004]).
Even assuming such a right, the claim would still be dismissed. With respect to claimant's federal constitutional right to due process, the law is settled that "claims for damages against the State based on alleged deprivations of rights under the US Constitution are beyond the jurisdiction of the Court of Claims" (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1151 [3d Dept 2009]; see Matter of Gable Transport, Inc. v State of New York, 29 AD3d 1125 [3d Dept 2006]; Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]; Zagarella v State of New York, 149 AD2d 503 [2d Dept 1989]; Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986]).
The Court of Appeals has recognized a narrowly defined cause of action for a state constitutional tort in the Court of Claims with respect to "violation of the Equal Protection and Search and Seizure Clauses of the State Constitution" (Brown v State of New York, 89 NY2d 172, 188 [1996]).
Subsequent decisional law instructs, however, that "no such claim will lie where the claimant has an adequate remedy in an alternate forum" (Shelton, 61 AD3d at 1151; see Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]; Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]).
Claimant could have raised her state constitutional claims in the context of an Article 78 proceeding in Supreme Court (see Bullard v State of New York, 307 AD2d 676, 678-679 [3d Dept 2003]) where incidental money damages were potentially available (see Matter of Gross, 72 NY2d at 237; CPLR § 7806).
The Court lacks subject matter jurisdiction over the claim which should have been brought in a CPLR Article 78 proceeding. The claim fails to state a cause of action in the Court of Claims for violation of claimant's federal or state constitutional rights.
The defendant's motion to dismiss the claim is granted.
The claim is dismissed.
February 23, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion to Dismiss in Lieu of Answer, filed December 3, 2014;
2. Affirmation of Paul F. Cagino, dated December 3, 2014, and annexed exhibits;
3. Claim, filed with Clerk of the Court of Claims on November 5, 2014.