Opinion
# 2012-040-009Claim No. 113544Motion # 2012-040-009Claim No. M-80506M-80580
02-03-2012
SEALY v. THE STATE OF NEW YORK
Synopsis
State's motion to dismiss pro se Claim granted in part, and the third and fourth causes of action dismissed. Case information
UID: 2012-040-009 Claimant(s): DAVID SEALY Claimant short name: SEALY Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 113544 Motion number(s): M-80506, M-80580 Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY Claimant's attorney: David Sealy, Pro Se ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Thomas M. Trace, Senior Attorney Third-party defendant's attorney: Signature date: February 3, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
For the reasons set forth below, the State's motion to dismiss is granted in part and denied in part, and pro se Claimant's motion to change venue is denied.
The Claim, which was served upon the Attorney General on April 5, 2007 (Affirmation of Thomas Trace, Esq., ¶ 2) and filed with the Clerk of the Court on April 6, 2007, asserts four causes of action, seeking recovery for property damage and for expenses allegedly arising out of the imposition of a disciplinary sentence following a disciplinary decision that was later reversed.
The State now moves to dismiss the second, third and fourth causes of action on the basis that the Court lacks personal and subject matter jurisdiction over those causes of action (CPLR 3211 (a)[2] and[8]).
Defendant concedes that the first cause of action is timely filed and served in accordance with Court of Claims Act § 10(9) (Trace Affirmation, ¶ 3). This cause of action relates to the destruction of Claimant's property, after its contamination, at Oneida Correctional Facility.
Defendant seeks to dismiss the second cause of action, on the basis that Claimant has failed to comply with Court of Claims Act § 10(9). Section 10(9) requires that an inmate who is seeking recovery of damages for injury to or for the loss of personal property, may not file a claim until he/she has exhausted all administrative remedies. Defendant asserts that Claimant has not exhausted his administrative remedies with regard to this cause of action.
In his second cause of action, Claimant alleges that, when his remaining property was transferred to Southport Correctional Facility, it was contaminated. Claimant asserts that one of Defendant's employees failed to properly fill out the paperwork to include that Claimant's property was destroyed because it was contaminated. The Claim further asserts that this failure hampered Claimant's ability to exhaust his administrative remedies regarding the destruction of his property.
The Court reads this cause of action as one for negligence on the part of Defendant's employee and not as a bailment. Thus, Court of Claims Act § 10(9) is inapplicable, and Defendant's motion to dismiss this cause of action is, therefore, denied.
In his third cause of action, Claimant alleges that a Tier III disciplinary hearing determination was administratively reversed on December 20, 2006. Claimant seeks lost wages for the time he was confined to the special housing unit. He also seeks to be reimbursed the cost of mailing his personal property in connection with such confinement.
With respect to lost wages, Defendant moves to dismiss this portion of the cause of action on the basis that it is untimely served and filed in accordance with Court of Claims Act § 10(3). Pursuant to the statute, personal injury actions caused by negligence or unintentional tort of State employees are required to be filed and served 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 instance, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim. In either case, Claimant was required to initiate action within 90 days of the Claim's accrual.
With respect to the claim for lost wages, Judge Michael E. Hudson stated, in Carlisle v State of New York (Ct Cl, Claim No. 109283, Motion No. M-72193, December 5, 2006 [UID No. 2006-034-612]): "… the claim for reimbursement of back program wages is based upon Directive 4802, entitled Inmate Payroll Standards, as revised March 30, 2003. That directive, at section III (c) (4) (d), provides that:
[i]f an inmate was suspended or confined to his or her cell or to special housing (SHU) pursuant to a disciplinary hearing, and subsequently found innocent, or if the disciplinary hearing is subsequently reversed for procedural error, the inmate will be reimbursed at the unemployed rate for six hours per day, excluding weekends and holidays, for all time served while in keeplock or SHU status; if the inmate was in the interim transferred to another facility, the facility at which the inmate is currently housed shall be responsible for the payment (emphasis in original)."
Entitlement to reimbursement under the above-referenced Directive arose upon the reversal of the Tier III determination. "Absent a violation of governing statutes or regulations, Claimant would not otherwise have possessed a right to recoup damages for time spent in disciplinary housing pursuant to such a determination, even where that disposition is later reversed (Minieri v State of New York, 204 AD2d 982 [4th Dept 1994]; see Arteaga v State of New York, 72 NY2d 212 [1988])" (id.). Because a cause of action accrues "when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court" (Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175 [1986]), the cause of action for program wage reimbursement accrued on December 20, 2006, the date of the reversal of the disciplinary determination.
Thus, pursuant to Court of Claims Act § 10(3), Claimant had 90 days from December 20, 2006 either to serve and file a Claim or serve a Notice of Intention to File a Claim, or until March 20, 2007. Here, Defendant acknowledges that Claimant served upon the Attorney General a Notice of Intention to File a Claim on April 5, 2007 (see Ex. A attached to State's Motion). The Claim was served upon Defendant on the same day and filed with the Court on April 6, 2007. Therefore, both the Notice of Intention to File a Claim and the Claim itself were served more than 90 days after accrual of this cause of action, and, thus, this portion of the cause of action is untimely. 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, as Defendant's First Affirmative Defense asserted in its Verified Answer dated May 9, 2007, 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]).
In his third cause of action, Claimant also seeks to be reimbursed the cost of mailing his excess personal property to two correctional facilities in connection with his transfer from Oneida Correctional Facility to Southport Correctional Facility, and from there to Mohawk Correctional Facility with regard to the above-referenced confinement. It is the general rule, however, that "the Commissioner of Correctional Services maintains broad discretion to transfer inmates from one correctional facility to another and an inmate has no right to remain at a particular facility" (Matter of Davis v Fischer, 81 AD3d 1011 [3d Dept 2011], citing Correction Law § 23[1]).
As the Commissioner has discretion in transferring inmates, no recovery can be had for transferring Claimant. Department of Correctional ServicesDirective 4913 relates to Inmate Property. Section III, ¶¶ F and G refer to the packing of inmate property when an inmate is transferred. Those provisions provide that personal property to be transferred is limited to four draft bags (with certain exceptions that are not relevant here). Paragraph E provides the procedure for the disposal of excess property, including allowing an inmate to mail the excess property at his/her own expense.
Effective April 2011, the Department of Correctional Services and Division of Parole were merged to form the Department of Corrections and Community Supervision ("DOCCS").
As DOCCS can transfer an inmate at its discretion, and its rules provide that four draft bags of personal property will be transferred with an inmate at DOCCS' expense, the Court concludes that this portion of the third cause of action should be dismissed as it fails to state a cause of action. The State's motion to dismiss the third cause of action is granted and it is dismissed in its entirety.
Claimant's fourth cause of action seeks reimbursement for the loss of additional personal property. Claimant filed an administrative claim at Southport Correctional Facility on December 13, 2006 (Ex. G attached to Claim). The claim was approved for reimbursement in the amount of $42.00 on February 21, 2007. It appears that Claimant accepted this amount as he seeks $20.09 (which is the difference between what he asserts his property was worth and the amount approved for payment) in this cause of action.
Defendant moves to dismiss this cause of action on the grounds that Claimant has failed to comply with Court of Claims Act § 10(9) in that he did not exhaust his administrative remedies, to wit, he did not administratively appeal the determination to pay him $42.00. DOCCS has established a two-tier system for handling personal property claims consisting of an initial review and an appeal (7 NYCRR 1700.3). Each of these "separate and distinct steps must be completed at the time a claim is filed and served in order for a claimant to be deemed to have exhausted his [or her] administrative remedies pursuant to CCA § 10(9)" (Tafari v State of New York, Ct Cl, Claim No. 106576, Motion No. M-65889, December 9, 2002, Lebous, J. [UID No. 2002-019-591]; see Griffin v State of New York, Ct Cl, Claim No. 113558, Motion No. M-73532, August 23, 2007, Collins, J. [UID No. 2007-015-232]).
As of the dates Claimant served and filed this Claim (April 5 and 6, 2007, respectively), he had not exhausted his administrative remedies and, as such, this cause of action is premature pursuant to Court of Claims Act § 10(9) (seeGriffin v State of New York, Ct Cl, Claim No. 113558, Motion No. M-73532, August 23, 2007, Collins, J. [UID No. 2007-015-232], supra; Tafari v State of New York, Ct Cl, Claim No. 106576, Motion No. M-65889, December 9, 2002, Lebous, J. [UID No. 2002-019-591], supra). The State's motion to dismiss this cause of action is granted and it is dismissed.
For the foregoing reasons, Defendant's motion is granted in part and the third and fourth causes of action of the Claim are dismissed.
Claimant submitted correspondence to the Clerk of the Court, which was accepted as a motion seeking a change of venue for the trial of this matter pursuant to CPLR § 510. As asserted by Defense counsel, there is no Notice of Motion and no affidavit from Claimant. Nevertheless, the Court takes this opportunity to address the merits of the motion.
The party seeking the change of venue bears the burden of proof (see Andros v Roderick, 162 AD2d 813 [3d Dept 1990]) and must identify, among other things, the witnesses and the substance of their testimony (Cavazzini v Viennas, 82 AD3d 1343 [3d Dept 2011]; Mroz v Ace Auto Body & Towing, 307 AD2d 403 [3d Dept 2003]; Stainbrook v Colleges of the Senecas, 237 AD2d 865 [3d Dept 1997]). Claimant has not indicated if he intends to offer the testimony of any witnesses other than his own. The Court finds that Claimant has failed to meet his burden of proof to have the venue of the trial changed. Based upon the foregoing, Claimant's motion is denied.
February 3, 2012
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on the State's motion to dismiss the Claim and Claimant's motion for change of venue of the trial:
Papers Numbered
Notice of Motion, Affirmation
and Exhibits Attached (M-80506) 1
Claimant's Correspondence to the
Clerk of the Court (M-80580) 2
Defendant's Correspondence dated
November 7, 2011 3
Filed Papers: Claim, Answer