Opinion
# 2021-040-017 Claim No. 132831 Motion No. M-96378 Motion No. CM-96499
05-18-2021
JUAN A. RODRIGUEZ v. THE STATE OF NEW YORK
Juan A. Rodriguez, Pro Se LETITIA JAMES Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG
Synopsis
Pro se Claimant's Motion for Summary Judgment denied and State's Cross-Motion for Summary Judgment dismissing the Claim granted.
Case information
| UID: | 2021-040-017 |
| Claimant(s): | JUAN A. RODRIGUEZ |
| Claimant short name: | RODRIGUEZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132831 |
| Motion number(s): | M-96378, CM-96499 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Juan A. Rodriguez, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | May 18, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimant's Motion for summary judgment is denied and Defendant's Cross-Motion for summary judgment dismissing the Claim is granted.
This Claim, which was filed in the Office of the Clerk of the Court on March 25, 2019, alleges that, in April 1994, Claimant was found guilty on two separate charges (statutory rape and attempted criminal possession of a weapon) and sentenced to a concurrent term of two to four years in prison (Claim, ¶ 5). It is further asserted that, upon the expiration of the maximum sentence, Claimant was unconstitutionally directed by the Department of Corrections and Community Supervision (hereinafter, "DOCCS") to register as a level 3 sex offender without due process (id., ¶ 6). It appears that Claimant was arrested and incarcerated, he asserts illegally, for not registering as a sex offender (id.). The Claim further asserts that, during his "unlawful incarceration," he was assaulted by another inmate, allegedly because a correction officer was not at his/her assigned post (id.). Claimant asserts violations of his Federal constitutional rights and his State constitutional rights (id., ¶¶ 2, 8).
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 the 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 a prima facieshowing 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).
In support of his Motion, Claimant has submitted a verified statement and several hundred pages of exhibits. In his statement, Claimant asserts that the Court should not consider any dispositive motion by Defendant, as any such motion is untimely because Defendant did not object to his filing of the Note of Issue, citing to CPLR Rule 3402(a) and the Uniform Rules for the Court of Claims (hereinafter, "Court of Claims Rules"), § 206.12. Claimant submitted, as Exhibit 1, a copy of this Court's Daily Report, dated December 10, 2020, wherein the Court stated that Claimant's Note of Issue and Certificate of Readiness was filed in the Office of the Clerk of the Court on January 30, 2020, and gave both parties until February 10, 2021 to serve and file dispositive motions with the Clerk of the Court.
In opposition to Claimant's request, Defendant asserts that, pursuant to CPLR Rule 3212(a), "[a]ny party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown." Defense counsel states that, in its December 10, 2020 Daily Report, this Court authorized the submission of dispositive motions no later than February 10, 2021. CPLR Rule 3212(a) provides the Court with discretion to set or extend deadlines for submitting dispositive motions. In addition, "a court's lack of subject matter jurisdiction is not waivable, but may be [raised] at any stage of the action, and the court may, ex mero motu [on its own motion], at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action" (Financial Indus. Regulatory Auth., Inc. v Fiero, 10 NY3d 12, 17 [2008], citing Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718 [1997]) (Affirmation of Michael T. Krenrich, Esq., Assistant Attorney General [hereinafter, "Krenrich Affirmation"], ¶¶ 19, 20).
The Court denies the request to bar consideration of Defendant's Cross-Motion for summary judgment as Claimant misunderstands the provisions to which he has referred. A party may move to strike the note of issue within 20 days after the service of the note of issue and certificate of readiness upon a showing in what respects the case is not ready for trial (Court of Claims Rules § 206.12[d]). As Defendant did not make a motion to strike the Note of Issue, in effect, it agreed with Claimant that all pre-trial discovery was complete and the Claim is ready for trial. In addition, as Defendant points out, CPLR Rule 3212(a) provides the Court with discretion to extend the time for the parties to make a summary judgment motion. The Court exercised that discretion because Claimant filed his Note of Issue approximately seven weeks prior to the Covid-19 pandemic disrupted many normal activities and caused Courts and many businesses to switch to remote or virtual operations. Therefore, the Court allowed both sides until February 10, 2021 to serve and file dispositive motions.
Turning to Claimant's Motion for summary judgment, Claimant's submission fails to establish entitlement to judgment as a matter of law. Claimant has submitted a Notice of Motion seeking summary judgment. He has also submitted a verified statement wherein he cites to several cases and makes arguments that the Court finds do not address the merits of his Claim. The Court finds that Claimant has failed to submit any competent evidence tending to establish the essential elements of the Claim. As such, his submission is insufficient (see Alvarez v Prospect Hosp., supra) and his Motion for summary judgment is denied.
The Court will now address Defendant's Cross-Motion for summary judgment pursuant to CPLR Rule 3212 dismissing the Claim. Defendant provides additional information that is not included in the Claim.
On April 12, 1994, Claimant was sentenced in Kings County Supreme Court pursuant to case number 14984/93 to an indeterminate term of two to four years incarceration upon his conviction of rape in the second degree (Affirmation of Jarrod Sanford, Esq., Assistant Counsel, DOCCS' Office of Sentencing Review [hereinafter, "Sanford Affirmation"], p. 1; Affidavit of Michelle Mulligan, Director of the Sex Offender Registry, Division of Criminal Justice Services [hereinafter, "Mulligan Affidavit"], ¶¶ 6[a], [b]; Krenrich Affirmation, ¶ 5). On April 15, 1994, Claimant was sentenced in Kings County Supreme Court pursuant to case number 1156/93 to an indeterminate term of two to four years incarceration upon his conviction of attempted criminal possession of a weapon in the second degree to run concurrent with his prior sentence (Sanford Affirmation, p. 1; Krenrich Affirmation, ¶ 6). While Mr. Rodriguez was incarcerated, the New York State Legislature enacted Article 6-C of the Correction Law (§§ 168-168-w), otherwise known as the Sex Offender Registration Act (hereinafter, "SORA"). As of January 21, 1996, SORA imposed registration requirements on sex offenders incarcerated or under parole or probation supervision at the time of the effective date, as well as those sentenced thereafter (Correction Law § 168-g; Mulligan Affidavit, ¶ 6[c]; Krenrich Affirmation, ¶ 7). Since Mr. Rodriguez was incarcerated pursuant to Penal Law § 130.30, a designated sex offense under Correction Law § 168-a(2), he was subject to the mandatory registration requirements under SORA (Mulligan Affidavit, ¶ 6[d]; Krenrich Affirmation, ¶ 8). Among the requirements under SORA, the sentencing court is required to assign every sex offender one of three levels of notification depending upon the degree of risk of re-offense posed by the sex offender (Correction Law § 168-l[6]; Correction Law § 168-n). If the risk of repeat offense is low, a level 1 designation shall be given to such sex offender (Correction Law § 168-l[6][a]). If the risk of repeat offense is moderate, a level 2 designation shall be given to such sex offender (Correction Law § 168-l[6][b]). If the risk of repeat offense is high, a level 3 designation shall be given to such sex offender (Correction Law § 168-l[6][c]; Mulligan Affidavit, ¶ 6[e]; Krenrich Affirmation, ¶ 9). On March 7, 1996, Mr. Rodriguez was informed of his obligation to register with the New York State Sex Offender Registry as indicated by his signature on the Sex Offender Registration Form. At that time, his notification level had not been set and was "pending" (Mulligan Affidavit, ¶ 6[f]; Krenrich Affirmation, ¶ 10). On March 28, 1996, Mr. Rodriguez was released to parole supervision. Because of SORA's then-recent effective date, Mr. Rodriguez' notification level was still pending (Mulligan Affidavit, ¶ 6[g]; Krenrich Affirmation, ¶ 11). On May 3, 1996, Justice Alan Marrus, of Supreme Court, Kings County, designated Claimant as a level 3 sex offender (Mulligan Affidavit, ¶ 6[i]; Krenrich Affirmation, ¶ 12; see Justice Marrus' Information attached to Defendant's Cross-Motion Papers).
On January 23, 2006, pursuant to a stipulation of settlement in Doe v Pataki, 96 Civ. 1657[DC], Justice Louis J. Marrero, of Supreme Court, Kings County, signed an Order Providing for Sex Offender Risk Level, stating:
Having had the District Attorney's Office supply another address for those defendants whose 1st letter has been returned as "undeliverable", and the 2ndletter has also been returned as "undeliverable", the original risk level shall be entered into the Sex Offender Registry administered by the Division of Criminal Justice Services.
(Mulligan Affidavit, ¶ 6[l]; Krenrich Affirmation, ¶ 13).
Since Mr. Rodriguez was originally designated as a level 3 sex offender on May 3, 1996, his designated risk level remained at level 3 pursuant to Justice Marrero's order (Mulligan Affidavit, ¶ 7; Krenrich Affirmation, ¶ 14; see Justice Marrero's Order attached to Defendant's Cross-Motion Papers).
As Defense counsel states in his Affirmation in Support of the Cross-Motion, based upon the numerous exhibits Claimant submitted in support of his Motion, it is clear that he was, and is, aware that he is required to register as a sex offender, and he has refused to do so (Krenrich Affirmation, ¶ 23). Claimant's Motion papers include references to several unsuccessful applications brought in Supreme Court arguing that he should not have to register (see Ex. 4 attached to Claimant's Motion).
The Court finds that, contrary to Claimant's arguments, the registration provisions under SORA do not violate Claimant's double jeopardy rights (Matter of Ariola v New York State Div. of Parole, 62 AD3d 1228, 1229 [3d Dept 2009], lv denied 13 NY3d 707 [2009]; People v Szwalla, 61 AD3d 1289, 1290 [3d Dept 2009]; Matter of M.G. v Travis, 236 A2d 163, 166-167 [1st Dept 1997], lv denied 91 NY2d 814 [1998]). In addition, they do not violate the ex post factoclause of the United States Constitution (People v Szwalla, supra; People v Bove, 52 AD3d 1124, 1124 [3d Dept 2008]).
The Claim also seeks to challenge Claimant's designation as a level 3 sex offender and the requirement he register as a sex offender with the Department of Criminal Justice Services.
"As a court of limited jurisdiction, the Court of Claims has no jurisdiction to grant strictly equitable relief" (Madura v State of New York, 12 AD3d 759, 760 [3d Dept 2004], lv denied 4 NY3d 704 [2005], citing to Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [3d Dept 1997]; see also Psaty v Duryea, 306 NY 413, 416 [1954]).
Therefore, as the Appellate Division, Fourth Department, stated in Green v State of New York (90 AD3d 1577, 1578 [2011], lv denied 18 NY3d 901 [2012]):
In determining whether the Court of Claims has subject matter jurisdiction over a claim, the initial 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" (Matter of Gross v Perales, 72 NY2d 231, 236 [1988], rearg denied 72 NY2d 1042 [1988]; see Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d 1142, [1143] [(3d Dept) 2009], lv denied 12 NY3d 712 [2009]; Sarbo IX v State of N.Y., Off. of Gen. Servs., 229 AD2d 910, 911 [(4th Dept) 1996]. Regardless of how a claim is characterized, one that requires, as a threshold matter, the review of an administrative agency's determination falls outside the subject matter jurisdiction of the Court of Claims (see Gross, [supra] at 236; Buonanotte, [supra] at 1143-1144; Matter of Salahuddin v Connell, 53 AD3d 898, 899 [(3d Dept) 2008]).
In order for Claimant to recover damages on his Claim, the Court would have to examine and reverse the determination of the Honorable Alan Marrus, Justice of the Supreme Court, Kings County, dated May 3, 1996, that Claimant's original risk level was a 3. The jurisdiction of the Court of Claims is limited to awarding damages in tort or contract and does not extend to the review of discretionary determinations of State agencies (Lantry v State of New York, UID 2001-001-027 [Ct Cl, Read, J., June 28, 2001]). "If the award of a money judgment must be preceded by overturning and annulling a determination of an administrative agency then the primary relief sought is not money damages" (Ouziel v State of New York, 174 Misc 2d 900, 905 [Ct Cl 1997]). Claimant should have challenged the determination of Justice Marrus by appealing the determination or by way of a proceeding pursuant to CPLR Article 78 in Supreme Court. It is well settled that this Court lacks subject matter jurisdiction of a Claim where the primary relief sought is obtainable in an Article 78 proceeding, regardless of how the Claim is characterized (Guy v State of New York, 18 AD3d 936, 937 [3d Dept 2005]). In addition, the Correction Law specifically provides that a sex offender may annually petition the sentencing court, or the court which made the determination regarding the level of notification, for an order modifying the level of notification (Correction Law § 168-o[2]).
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.
To the extent Claimant is asserting a cause of action for violation of his State constitutional rights, the Court notes that, 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 Brownestablishes 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 [Claimant's] 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, either in a Federal Court action asserting violations of the Federal Constitution, in New York State Supreme Court in a CPLR Article 78 proceeding, or pursuant to Correction Law § 168-o (2) by petitioning the sentencing court, or the court that made the determination, regarding the level of notification, for an order modifying the same.
Claimant asserts that, during his "unlawful incarceration," he was assaulted by another inmate as described in Exhibit H attached to the Claim, based upon an officer's failure to protect Claimant (last unnumbered paragraph preceding paragraph 7 of the Claim). The Claim does not set forth the time when, or the place where, the cause of action accrued as required by Court of Claims Act § 11(b). However, Exhibit H, which is an Involuntary Protective Custody Recommendation form, states that Claimant was assaulted by an unknown inmate with a cutting-type weapon in the North yard (the correctional facility is not identified) and is dated December 17, 2018.
Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed with the office of the Clerk of the Court and served upon the Attorney General within two years after the accrual of the Claim (Court of Claims Act § 10[3]). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual.
Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in Section 10 of the Court of Claims Act, either personally or by certified mail, return receipt requested. The statute further provides that service by certified mail, return receipt requested, is not complete until the Claim or Notice of Intention to File a Claim is received by the Attorney General.
Pursuant to Court of Claims Act § 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense either by motion to dismiss prior to service of the responsive pleading, or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
In its Answer, filed in the office of the Clerk of the Court on May 10, 2019, Defendant asserted as its First Affirmative Defense that "[t]his Court lacks subject matter jurisdiction over the Claim and personal jurisdiction over the [D]efendant, the State of New York as the Claim is untimely in that neither the Claim nor a Notice of Intention was served within ninety (90) days of accrual of the Claim as required by Court of Claims Act Section 11 and Court of Claims Act Section 10(3)."
There are two Exhibits labeled "H" attached to the Claim. The Court is referring to the second Ex. H.
Claimant asserts in his Claim that he did not serve a Notice of Intention to File a Claim (Claim, ¶ 7). The Claim was filed in the Office of the Clerk of the Court on March 25, 2019, as stated above. The Attorney General asserts that the Claim was served upon Defendant on April 19, 2019 (Krenrich Affirmation, ¶¶ 15, 31). The Court notes, however, that Exhibit A attached to the Answer bears a stamp that the Claim was received by the Attorney General's Claims Bureau on April 1, 2019. The cause of action regarding the assault alleges negligence on the part of the officer who failed to prevent the attack. Thus, pursuant to Court of Claims Act § 10(3), the Claim regarding this cause of action had to be served and filed within 90 days of accrual, which was no later than December 17, 2018. Therefore, in order for the Claim to be timely, it had to be served and filed on or before Monday, March 18, 2019. This, Claimant failed to do, as set forth above. The Claim was filed on March 25, 2019 and served either on April 1, 2019, or on April 19, 2019.
Court of Claims Act § 10 is more than a statute of limitations; it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (Mallory v State of New York, 196 AD2d 925, 926 [3d Dept 1993]; DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973], affd 37 NY2d 735 [1975]; Antoine v State of New York, 103 Misc 2d 664 [Ct Cl 1980]). Failure to timely comply with the statutory service and filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Lyles v State of New York, 3 NY3d 396, 400-401 [2004]; Buckles v State of New York, 221 NY 418 [1917]; Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). The Court cannot waive a defect in jurisdiction that has been timely raised (see Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). The defect asserted was timely and properly raised with particularity in Defendant's verified Answer as set forth above, in accordance with Court of Claims Act § 11(c) (Czynski v State of New York, 53 AD3d 881, 882 [3d Dept 2008], lv denied 11 NY3d 715 [2009]; Villa v State of New York, 228 AD2d 930, 931 [3d Dept 1996], lv denied 88 NY2d 815 [1996]).
Based upon the foregoing, Defendant's Cross-Motion is granted and the Claim is dismissed for failure to timely serve it in accordance with Court of Claims Act §§ 10(3), and 11(a)(i).
May 18, 2021
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 for Summary Judgment to dismiss: Papers Numbered Claimant's Motion, Verified Statement, and Exhibits Attached 1 Defendant's Notice of Cross-Motion, Affirmation, and Exhibits Attached 2 Filed Papers: Claim, Answer