Opinion
# 2018-032-033 Claim No. 130241 Motion No. M-91237
06-15-2018
FREDERICK SMITH v. THE STATE OF NEW YORK
Asher & Associates, P.C. By: Ryan H. Asher, Esq. Hon. Barbara D. Underwood, Attorney General By: Paul F. Cagino, Assistant Attorney General
Synopsis
Defendant's motion to dismiss the claim is granted for claimant's failure to timely file the claim in accordance with Court of Claims Act §§ 10 (3) and (3-b).
Case information
| UID: | 2018-032-033 |
| Claimant(s): | FREDERICK SMITH |
| Claimant short name: | SMITH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130241 |
| Motion number(s): | M-91237 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Asher & Associates, P.C. By: Ryan H. Asher, Esq. |
| Defendant's attorney: | Hon. Barbara D. Underwood, Attorney General By: Paul F. Cagino, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 15, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed the instant claim in this action on September 8, 2017, alleging causes of action under New York State law for assault and battery; negligence; and respondeat superior stemming from an assault on claimant committed by three correction officers that occurred on September 9, 2015 at Great Meadow Correctional Facility. The claim also asserts three causes of action arising under 42 USC § 1983 for excessive force; failure to intervene; and retaliatory discipline. Defendant filed the instant motion to dismiss in lieu of an answer, arguing that the claim should be dismissed for lack of subject matter jurisdiction pursuant to CPLR 3211 (a) (2) and for failure to state a cause of action pursuant to CPLR 3211 (a) (7). Claimant opposed the motion.
LAW AND ANALYSIS
Assault and Battery and Excessive Force (First and Second Causes of Action)
Defendant seeks dismissal of claimant's first and second causes of action for assault and battery and excessive force on the ground that claimant failed to timely file the claim pursuant to Court of Claims Act § 10 (3-b).
The time period for filing and serving a claim for an intentional tort upon the Attorney General is ninety days from the date of accrual, unless the claimant, within said time, serves the Attorney General with a written notice of intention to file a claim, in which event the claim would need to be filed and served upon the Attorney General within one year after the accrual date (Court of Claims Act § 10 [3-b]). The instant claim accrued on September 9, 2015 (Verified Claim ¶ 14). Claimant served a notice of intention upon the Attorney General on December 8, 2015. Pursuant to Court of Claims Act § 10 (3-b), claimant was required to file and serve a claim no later than September 9, 2016--one year after the accrual date. Here, claimant did not file the claim until September 8, 2017--nearly one year late. Accordingly, claimant's first cause of action for assault and battery is dismissed as untimely.
Claimant erroneously argues that the cause of action for excessive force under 42 USC § 1983 is timely because it is governed by a three year statute of limitations when asserted in the Court of Claims. This argument is problematic for two reasons. Claimant cites numerous cases holding that excessive force causes of action under 42 USC § 1983 are governed by CPLR 214 (5), which applies a three year statute of limitations to general personal injury actions (see Pearl v City of Long Beach, 296 F3d 76, 79 [2d Cir 2002]). Although claimant correctly identifies the New York State statute of limitations applicable to 42 USC § 1983 causes of action, causes of action under 42 USC § 1983 cannot be maintained in the Court of Claims, as the State is not a "person" for purposes of that 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], 2007 NY Slip Op 50229[U], *2 [Ct Cl 2007]). Accordingly, claimant's second cause of action for excessive force is dismissed.
Negligence (Third and Fourth Causes of Action)
Defendant argues that claimant's negligence causes of action must be dismissed because they were not filed and served upon the Attorney General within 90 days of accrual pursuant to Court of Claims Act § 10 (3).
The time period for filing and serving a claim for negligence upon the Attorney General is ninety days from the date of accrual, unless the claimant, within said time, serves the Attorney General with a written notice of intention, in which event the claim would need to be filed and served upon the Attorney General within two years after accrual of the claim (Court of Claims Act § 10 [3]). Here, claimant served a notice of intention upon the Attorney General within 90 days of the accrual date, but defendant alleges that the notice of intention fails to include an allegation of negligence.
The notice of intention served upon the Attorney General on December 8, 2015 alleges causes of action for "the intentional acts of assault and battery, excessive force and violations of [claimant's] Constitutional rights . . ." (Affirmation of Paul F. Cagino, AAG, Ex. A, ¶¶ 1, 4). It does not contain the word "negligence" or any derivation of that word. Nevertheless, claimant asserts that the allegations contained in the notice of intention were sufficient to apprise defendant of a negligence cause of action. The Court disagrees. Although negligence may be inferred from the description of the incident, claimant's notice of intention is insufficient to apprise defendant of its liability regarding any negligence cause of action (Bensen v State of New York, 88 Misc 2d 1035, 1042 [Ct Cl 1976] ["While negligence . . . is a possible cause of the acts alleged in the notices, it cannot be fairly said that the notices of intention apprised defendant of this possibility."]). Even "[c]onclusory or general allegations of negligence that fail to adduce . . . how the State was negligent" (Heisler v State of New York, 78 AD2d 767, 767-768 [4th Dept. 1980]), are insufficient to meet the requirements of Court of Claims Act § 11 (b). Although claimant served a timely notice of intention sounding in intentional tort, he failed completely to allege any negligence cause of action within that timely notice of intention. Thus, the Court finds that the notice of intention was not timely served within 90 days of accrual as to the negligence causes of action. The claim filed on September 8, 2017 asserted causes of action sounding in negligence, but was not filed and served within 90 days of the September 9, 2015 accrual date. Accordingly, the Court dismisses claimant's third and fourth causes of action sounding in negligence as untimely.
The holding in Bensen was rejected by the Third Department in Trayer v State of New York, 90 AD2d 263 [3d Dept. 1982]. At the time of the Trayer decision, Court of Claims Act § 10 (3) applied to both intentional and unintentional torts, and the statute stated that any tort claim must be filed within two years of accrual where a notice of intention is first served. The Trayer Court held that a claim for intentional tort was untimely if filed outside of the one year statute of limitations proscribed by CPLR 215, even if a notice of intention is timely served. The time period for filing a claim for intentional tort in the Court of Claims and the statute of limitations applicable to intentional torts pursuant to CPLR 215 were aligned when the Court of Claims Act was amended in 1985 to add section 10 (3-b)--which is currently in effect and mandates that a claim for intentional tort must be filed within one year of accrual where a notice of intention is first served (L. 1985, c. 645, § 1). The Trayer Court did not reject the Bensen Court's holding which dismissed the claimant's negligence cause of action, and which the Court cites as support for its holding in the instant claim.
Respondeat Superior (Fifth Cause of Action)
Defendant seeks dismissal of claimant's cause of action for respondeat superior on the ground that claimant cannot maintain a cause of action for respondeat superior where the causes of action for the underlying negligent or intentional conduct are dismissed. Claimant argues that the cause of action for respondeat superior is timely because the underlying causes of action for negligence and intentional tort are timely.
An employer may be liable when an employee acts negligently or intentionally, if the tortious conduct is foreseeable and is a natural incident of employment (Judith M. v Sisters of Charity Hosp., 93 NY2d 932 [1999]), citing Riviello v Waldron, 47 NY2d 297 [1979]). Here, the negligent and intentional acts upon which claimant bases his cause of action for respondeat superior are dismissed as untimely, as discussed supra. Accordingly, the corresponding respondeat superior cause of action must be dismissed as untimely (see Leibovitz v State of New York, UID No. 2015-047-129 [Ct Cl, Sherwood, J., Mar. 31, 2015]; Braga v State of New York, UID No. 2008-044-592 [Ct Cl, Schaewe, J., Dec. 5, 2008]).
Retaliatory Discipline (Sixth Cause of Action)
Defendant seeks dismissal of claimant's sixth cause of action for retaliatory discipline on the ground that the Court lacks jurisdiction over this cause of action. The Court agrees. First, the claim asserts a claim for retaliatory discipline under 42 USC § 1983, and it is well established that the Court of Claims lacks the jurisdiction to hear civil actions brought under 42 USC § 1983 (see Brown v State of New York, 89 NY2d at 185). Further, even if claimant's allegations could be construed under state law, allegations for retaliatory conduct must be addressed through a prison's administrative grievance process, followed by a CPLR Article 78 proceeding in supreme court (Brown v State of New York, UID No. 2013-038-111 [Ct Cl, DeBow, J., Nov. 26, 2013]). As the Court of Claims is not the proper venue for a cause of action alleging retaliatory discipline, claimant's sixth cause of action is dismissed.
Request to Treat Notice of Intention to File a Claim as a Claim
In his affirmation in opposition to defendant's motion, claimant requests that the Court treat the notice of intention as a claim. The Court denies this request for the following reasons.
Court of Claims Act § 10 (8) (a) states that:
"A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The Court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."
First, claimant failed to make an application to treat the notice of intention as a claim upon motion. The application was made in one paragraph of claimant's affirmation in opposition to defendant's motion to dismiss (Affirmation of Ryan H. Asher, Esq. ¶ 6). Second, the notice of intention asserts causes of action sounding only in intentional tort, which are subject to a one year statute of limitations under CPLR 215. The statute of limitations applicable to claimant's intentional tort claims expired on September 9, 2016. The affirmation in opposition was not filed until March 6, 2018. Accordingly, even if claimant requested that the notice of intention be treated as a claim upon a properly noticed motion, the application for such relief would have fallen outside the applicable statute of limitations under the CPLR. Lastly, to the extent that the notice of intention alleges violations of claimant's 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 (see Brown v State of New York, 89 NY2d at 185). To the extent that claimant seeks to allege State constitutional torts, the Court finds that claimant'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]).
CONCLUSION
Based upon the foregoing, its is hereby
ORDERED that defendant's motion to dismiss the claim (M-91237) is granted and claim number 130241 is dismissed.
June 15, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Verified Claim, filed on September 8, 2017. 2. Notice of Motion to Dismiss in Lieu of Answer, dated October 20, 2017; and Affirmation in Support of Motion, affirmed by Paul F. Cagino, AAG on October 20, 2017, with Exhibits A through C annexed thereto. 3. Affirmation in Opposition, affirmed by Ryan H. Asher, Esq. on March 6, 2018, with Exhibit A annexed thereto.