Opinion
# 2017-041-020 Claim No. 128895 Motion No. M-89725
03-13-2017
SELWIN WILKES v. THE STATE OF NEW YORK
SELWIN WILKES Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Christina Calabrese, Esq. Assistant Attorney General
Synopsis
Claim alleging that defendant negligently denied the inmate/claimant visitation with his children is dismissed for lack of subject matter jurisdiction and failure to state a cause of action where claimant successfully pursued administrative remedy and had adequate remedy in CPLR Article 78.
Case information
| UID: | 2017-041-020 |
| Claimant(s): | SELWIN WILKES |
| Claimant short name: | WILKES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128895 |
| Motion number(s): | M-89725 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | SELWIN WILKES Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Christina Calabrese, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 13, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves pursuant to CPLR 3211 to dismiss the claim for failure to state a cause of action. Claimant opposes the defendant's motion.
The claim alleges, in sum and substance, that defendant negligently denied the inmate/claimant visitation at Clinton Correctional Facility (Clinton) with his children.
In particular, the claim alleges that claimant, upon entering the state prison system on February 1, 2013, was required to sign an "order of protection" pursuant to which he was allegedly "forbidden to have any contact with his children." Defendant allegedly required claimant to sign the "order of protection" based upon a temporary order of protection which had been issued by the New York City Criminal Court in 1996 (Temporary Order of Protection).
On August 8, 2016, claimant filed a grievance at Clinton demanding that the Temporary Order of Protection be removed from claimant's Clinton records. On September 20, 2016, claimant's grievance was essentially granted:
"An investigation has revealed that there had been an order of protection on file. The court has verified that there is no current order of protection and the negative correspondence has been removed. Upon conclusion of the investigation the order of protection has been removed from the grievant's record and there is no evidence of staff malfeasance."
The record shows that claimant had been the subject of a criminal court Temporary Order of Protection which allegedly prevented claimant from visitation with his children. Upon filing a grievance and showing that the Temporary Order of Protection was no longer in effect, claimant's institutional record at Clinton was corrected and, presumably, claimant is now able to enjoy visitation with his children.
The claim fails to state a negligence-based cause of action against defendant. In McLean v The City of New York (12 NY3d 194, 203 [2009]), the Court of Appeals recited the law as to when the state may be held liable for the negligent performance of a governmental function:
"Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general."
Defendant's operation of a correctional facility is a governmental function and its administration of visitation privileges for inmates is "heavily discretionary" (see Matter of Doe v Coughlin, 71 NY2d 48, 56 [1987], cert denied 488 US 879 [1988]; Matter of Garcia v Morris, 140 AD3d 1441 [3d Dept 2016]).
Liability arising from the allegedly negligent performance of a ministerial governmental function may only attach when a claimant establishes that the State breached a special duty owing directly to the claimant (Metz v State of New York, 20 NY3d 175, 179 [2012]; Valdez v City of New York, 18 NY3d 69, 75 [2011]).
Claimant was required to allege facts sufficient to show that he was owed a special duty by defendant.
A "[special] duty is born of a special relationship between the [claimant] and the governmental entity. When such a relationship is shown--and it is [claimant's] burden to establish it--the government is under a duty to exercise reasonable care toward the [claimant]" (Pelaez v Seide, 2 NY3d 186, 198-199 [2004]).
A "[special] duty is born of a special relationship between the [claimant] and the governmental entity. When such a relationship is shown--and it is [claimant's] burden to establish it--the government is under a duty to exercise reasonable care toward the [claimant]" (Pelaez v Seide, 2 NY3d 186, 198-199 [2004]). The Pelaez opinion explains that a "special relationship can be formed in three ways: (1) when the [defendant] violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the [defendant] assumes positive direction and control in the face of a known, blatant and dangerous safety violation" (Pelaez, 2 NY3d at 199-200 [2004).
The only possible manner in which claimant could seek to show a special relationship, under the facts and circumstances of this action, is through the "statutory duty" analysis of the first prong of the Pelaez test. The Court of Appeals, in Pelaez, explained, at p. 200, that:
"To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action. One may be fairly implied when (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme . . . If one of these prerequisites is lacking, the claim will fail."
The Pelaez decision cautioned that "[w]hile the existence of a special relationship depends on the facts, a plaintiff has a heavy burden in establishing such a relationship" and, consequently, courts have "dismissed most such claims as a matter of law" (Pelaez, 2 NY3d 186, 199 n 8).
Claimant has failed to allege facts which would show that (1) the claimant is a member of a statutory class for whose particular benefit the statute was enacted; (2) that a private right of action would promote the legislative purpose of any such statute; and (3) that to grant a private right of action would be consistent with any such legislative scheme.
The claim accordingly fails to state a cause of action.
Additionally, the Court lacks subject matter jurisdiction over the claim. The subject matter jurisdiction of 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 defendant in allegedly denying him visitation privileges. The appropriate remedy for such a challenge is an inmate grievance proceeding and, if necessary, a CPLR article 78 proceeding.
As Matter of Grigger v Goord (27 AD3d 803 [3d Dept 2006], lv denied 7 NY3d 702 [2006]) explains:
"While 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."
Here, the claimant asks the Court of Claims to review an administrative action of defendant. The Court lacks subject matter jurisdiction to do so.
Assuming claimant's grievance regarding the effect of the expired Temporary Order of Protection on claimant's visitation privileges had been denied, claimant could have sought relief in an Article 78 proceeding in Supreme Court (CPLR 7806; Matter of Cole v Fischer, 107 AD3d 1256 [3d Dept 2013]).
The claim fails to state a negligence cause of action. Additionally, the Court lacks subject matter jurisdiction over the claim.
The defendant's motion to dismiss the claim is granted.
The claim is dismissed.
March 13, 2017
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion, filed December 29, 2016; 2. Affirmation of Christina Calabrese, dated December 29, 2016, and annexed exhibits; 3. Verified Response of Selwin Wilkes, sworn to January 13, 2017.