Opinion
# 2015-018-605 Claim No. 124331 Motion No. M-85558
01-20-2015
ANTHONY P. CASSATA v. STATE OF NEW YORK
PHILLIPS LYTLE LLP By: Jodie L. Ryan, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Edward F. McArdle, Esquire Assistant Attorney General
Synopsis
Claimant's allegations of intentional wrongdoing are untimely pursuant to CCA § 10 (3-b). Claimant's cause of action for unlawful confinement fails to meet the CCA § 11 (b). Claimant failed to state a viable cause of action in the Court of Claims for constitutional relief. Claimant's claim for loss property fails for noncompliance with CCA § 11 (b). Accordingly, Defendant's motion is granted the claim is DISMISSED.
Case information
| UID: | 2015-018-605 |
| Claimant(s): | ANTHONY P. CASSATA |
| Claimant short name: | CASSATA |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124331 |
| Motion number(s): | M-85558 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | PHILLIPS LYTLE LLP By: Jodie L. Ryan, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Edward F. McArdle, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 20, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings a pre-answer motion to dismiss the claim on several grounds. Claimant opposes the motion.
Claimant filed a claim with the Clerk of the Court on May 8, 2014, and served a copy upon the Attorney General on May 29, 2014. The claim seeks damages for violation of Claimant's constitutional rights and for Defendant's carelessness, recklessness, reckless indifference, negligence, gross negligence, and the intentional acts of the State's officers, agents, servants, and employees. It is alleged that the claim arose between June 3, 2009 and February 12, 2013.
Claimant asserts that when he was sentenced in Steuben County on June 3, 2009, Judge Latham did not direct whether his sentence would run consecutively or concurrently with his prior sentence from Livingston County. Based upon Penal Law section 70.25, Claimant argues that if the Court does not specify whether a sentence will run consecutively or concurrently with a prior sentence, the newly imposed sentence must run concurrently. At the time, Claimant objected to his Steuben County sentence running consecutively with the Livingston County sentence with the Department of Corrections and Community Supervision (DOCCS) on several occasions, but only after a pro se motion to set aside the sentence, pursuant to Criminal Procedure Law section 440.20, was heard by Justice Latham on September 26, 2012, was his Steuben County sentence ordered to run concurrently with his Monroe and Livingston Counties sentences.
Claimant further argues he was eligible for his initial parole interview on April 1, 2011, and eligible for parole at the expiration of his minimum sentence on October 4, 2011, the parole interview was not scheduled until October 2012. Claimant alleges he was unlawfully confined.
The claim also alleges that Claimant was wrongfully denied consideration for the "Southport Cadre Program" and suffered a loss of two years of "good time" for "refusing ASAT" despite being given a memorandum from a correction counselor at Cape Vincent Correctional Facility that indicated she had "deactivated [his] name for ASAT and ART on the waiting list, at no consequence to [him]." This was done after the counselor reviewed Claimant's medical concerns. Claimant alleges that this violated his constitutional rights. He alleges that his loss of good time was the result of Defendant's retaliation, carelessness, recklessness, reckless indifference, negligence, and gross negligence.
Defendant indicates that ASAT stands for Alcohol and Substance Abuse Treatment and ART stands for Aggression Replacement Treatment, see McArdle affirmation page 2, paragraph 6.
The claim also asserts that Defendant was in sole custody and control of a bag of legal paperwork on September 19, 2012, when Claimant was transported from Cape Vincent Correctional Facility to Steuben County Court for a court appearance. Defendant returned Claimant's bag after a couple of weeks, but it was missing his legal paperwork, and Claimant asserts that he submitted a claim for $4,500 for the cost of having the legal documents re-drafted. Based upon these allegations, Claimant seeks damages in excess of $250,000 for the violation of his constitutional rights and continued unlawful confinement, as well as lost wages and benefits.
By this motion, Defendant seeks dismissal of the claim pursuant to: CPLR 3211 (a) (2), (5) and (7) and Court of Claims Act sections 10 (3), 10 (3-b) and 10 (9).
Defendant argues that to the extent Claimant seeks damages for a violation of his constitutional rights, the claim must be dismissed because the Court of Claims lacks jurisdiction for violations of the United States Constitution, and relief for a violation of the New York State Constitution is viable only when Claimant has no other remedies available. Here, Defendant asserts that Claimant could have filed a grievance and an Article 78 proceeding, making resort to a constitutional tort unnecessary.
Defendant next alleges that any intentional tort cause of action must be dismissed as untimely since the claim was not brought within one year from the latest date of accrual Claimant cites in his claim. Defendant argues that all other causes of action relate to June 3, 2009, October 1, 2010, or November 9, 2011, accrual dates which are untimely as not occurring within two years of service and filing of the claim in May 2014. Defendant also argues the bailment claim was not properly brought because Claimant's administrative claim was resolved by a settlement offer that Claimant failed to accept or reject within the time allotted, so the claim was closed on April 2, 2013, and no claim was filed and served within 120 days of that date.
Further, Defendant contends that the claim fails to meet the pleading requirements of Court of Claims Act section 11 (b). Defendant asserts that it has been unable to determine, from reading the claim, what the legal basis is for the claim raised in paragraphs 3, 4, and 5. To the extent that Claimant seeks equitable relief for the facts alleged in those paragraphs, the Court of Claims lacks jurisdiction to grant such relief unless it is incidental to the claim for money damages. Review of an agency determination should be done in an Article 78 proceeding and not in the Court of Claims, Defendant argues, and the money damages sought are only incidental to the equitable relief.
Defendant relies upon a letter affirmation of Richard deSimone, Esquire, an attorney with DOCCS, to argue that Claimant's sentences on his criminal convictions were calculated correctly and to the extent the claim seeks damages for the miscalculation it must be dismissed.
Defendant's Exhibit B.
The Court has not relied upon this affirmation to assess whether the sentence was accurately calculated (see Liberty Affordable Housing, Inc. v Maple Court Apartments, 2015 WL 25080 [4th Dept 2015]; see also Guggenheimer v Ginzburg, 43 NY2d 268 [1977]; Rovello v Orofino Realty Co., 40 NY2d 633 [1976]; Goldstein v Monroe County, 77 AD2d 232 [4th Dept 1980]).
In opposition to the motion, Claimant submits his affidavit, his attorney's affidavit, and a memorandum of law and relies upon some of the exhibits attached to Defendant's submissions. In his affidavit, Claimant seems to indicate that the wrongdoing alleged for the purported incorrect calculation of Claimant's Steuben County sentence was the result of the Court Clerk's failure to properly record the correct terms of the agreed upon sentence as set forth by Judge Latham. Claimant, in his affidavit indicates that despite Judge Latham's correction of his sentence by granting Claimant's CPL section 440 motion, he was held longer than he should have been, was not timely notified of his eligibility for parole, and his "good time" credit was unlawfully removed. Claimant then goes on to recount work that he was allegedly required to perform at the prison facility in violation of his medical restrictions. None of the allegations related to Claimant's work assignment are mentioned in or inferable from the claim. Claimant also acknowledges that for his lost property claim, he did not respond to Defendant's settlement offer.
Claimant's counsel argues that the claim must be viewed liberally, and Claimant served a notice of intention to file a claim upon Defendant on April 9, 2013, extending Claimant's time to file and serve a claim for two years. It is also asserted that all causes of action are properly before the Court and the claim complies with the Court of Claims Act.
At this stage of the proceedings, before issue has been joined and on a motion to dismiss, the Court has reviewed Claimant's submissions in a light most favorable to him and accepted as true the allegations made in the claim (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The Court has considered all of Claimant's submissions including the exhibits attached to Defendant's papers on which Claimant has relied to determine if, under the facts alleged, Claimant has any cause of action (Polk v Gugino, 101 AD3d 1768 [4th Dept 2012]).
Allegations of Intentional Wrongdoing
Court of Claims Act section 10 (3-b) provides that for actions to recover damages caused by the intentional tort of a State officer or employee, a claim must be filed and served upon the State within ninety days after the accrual of the claim, unless a notice of intention is served upon the Attorney General within ninety days of accrual of the claim, and then a claim must be filed and served within one year after the date of accrual.
In this case, as Defendant argues, the last possible date of accrual identified in the claim is February 12, 2013. Claimant served a notice of intention on April 9, 2013, but the claim was not filed until May 8, 2014, and served until May 29, 2014, well-beyond one year from the last possible date of accrual. Any cause of action for intentional wrongdoing is, therefore, untimely.
Unlawful Confinement
On a cause of action for unlawful confinement it is Claimant's burden to assert that " (1) the defendant intended to confine him, (2) the [Claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged." (Broughton v State of New York, 37 NY2d 451, 456 [1975] cert denied sub nom., Schanbarger v Kellogg, 423 US 929 [1975]). The cause of action accrues upon the release from confinement. The last date noted in the claim is February 12, 2013, which Claimant indicates was the date his incarceration ended. A cause of action for unlawful or wrongful confinement in the prison disciplinary context may involve negligent or under some circumstances intentional conduct requiring commencement of the action in the Court of Claims, after service of a notice of intention, within two years from the date of accrual in accordance, with Court of Claims Act section 10 (3), for negligence or unintentional conduct or within one year, in accordance with section 10 (3-b) for an intentional tort (Matter of Kairis v State of New York, 113 AD3d 942 [3d Dept 2014]; Vazquez v State of New York, 23 Misc 3d 1101[A] [Ct Cl 2009]; Ramirez v State of New York, 171 Misc 2d 677, 680-682 [Ct Cl 1997]). Here, this does not involve wrongful confinement in the disciplinary context in violation of DOCCS governing rules and regulations, but rather the State's alleged unlawful extension of Claimant's incarceration based upon the State's determination or calculation of the length of Claimant's sentence. The allegations reflect the State's intentional imposition of the term of claimant's incarceration. As set forth above, the claim was not timely served and filed for any intentional tort.
Claimant's affidavit dated November 25, 2014, paragraph 5 indicates he was released from State custody on February 12, 2013.
However, even if the claim were timely for an unlawful or wrongful confinement cause of action, this cause of action would have to be dismissed. Claimant has failed to allege that his confinement was not privileged (see Donald v State of New York, 17 NY3d 389, 395 [2011]). Defendant's confinement of Claimant, to the extent it calculated his period of incarceration on the County of Steuben sentence and commitment to run consecutively to the 2008-66 Livingston County sentence, is privileged and not actionable. Based upon the Steuben County [Uni] Form Sentence and Commitment referenced by Claimant on this motion, and the sentencing minutes by Steuben County Court Judge Joseph W. Latham, it is reflected that the sentence on Claimant's plea to grand larceny in the fourth degree in Steuben County was to run "consecutive to any unexpired term" in Livingston County on indictment 2008-66. Even if a statute requires a different sentence, DOCCS is "conclusively bound by the contents of commitment papers accompanying a prisoner." (Matter of Murray v Goord, 1 NY3d 29, 32 [2003], quoting Middleton v State of New York, 54 AD2d 450, 452 [3d Dept 1976], affd 43 NY2d 678 [1977]). The transcript of Claimant's Steuben County sentencing and the Uniform Sentence and Commitment directly contradict Claimant's assertion in the claim that Judge Joseph W. Latham did not address whether the sentence should run consecutively or concurrently. Both the transcript and the Uniform Sentence and Commitment direct that the sentence is to run consecutively. DOCCS actions in calculating Claimant's dates of incarceration based upon the 2009 Uniform Sentence and Commitment until it was modified in 2012 is privileged in that DOCCS had no jurisdiction to impose different terms of Claimant's sentence. This case is the opposite of Greaves v State of New York, 35 Misc 3d 290 [Ct Cl 2011], in which W. Brooks DeBow, Judge of the Court of Claims, found that the claimant's sentence, as directed by the sentencing Court in that case, was to run concurrently with a prior undischarged sentence. Although the sentence varied from what was statutorily required (Penal Law section 70.25 [2-a] [requiring that sentencing for a second felony offender on any newly imposed sentence must run consecutive to a prior sentence], DOCCS had no authority to act when it modified Greaves' sentence to run consecutively, even though statutorily required, and as a result Claimant made out a prima facie case for unlawful confinement (Greaves, at 297). Here, DOCCS calculation of Claimant's sentence based upon the order of commitment it was provided from the Court was privileged.
Exhibit B attached to Defendant's motion.
Exhibit B, Sentencing Minutes dated June 3, 2009, page 9 lines 8-10.
To the extent Claimant alleges that after Claimant's sentence was modified on September 26, 2012, Defendant unlawfully continued to incarcerate him, such allegations also fail in that this assertion, again, raises issues of Defendant's intentional misconduct for which the claim is untimely.
To the extent Claimant's affidavit attempts to alter his theory for relief by arguing that the Court Clerk negligently failed to properly record his sentence this, too, is belied by the sentencing order of Judge Latham on the record in which he clearly states that "[t]he prison sentence is consecutive to any unexpired term that you owe in relation to a previous Livingston County Conviction" [emphasis supplied]. Moreover, since there is no reference in the claim to any allegation that the Court Clerk failed to correctly record his sentence, any claim it was the ministerial neglect of the Clerk that caused his unlawful confinement fails to meet the stringent pleading requirements of Court of Claims Act section 11 (b) (Lepkowski v State of New York, 1 NY3d 201 [2003]).
Defendant's Exhibit B, Sentencing Minutes page 9, lines 8-10.
Cause of Action for Constitutional Violations
Unlike the Supreme Court that has general jurisdiction, the Court of Claims is a court of limited jurisdiction, having the authority to hear only those actions which are permitted by statute (Court of Claims Act §§ 8 and 9). In Brown v State of New York, 89 NY2d 172 [1996], the Court of Appeals, for the first time, recognized a constitutional tort cause of action was actionable in the Court of Claims. The Court set the specific criteria to assess when a damage remedy should be implied for a violation of a constitutional provision. First, no cause of action may be maintained in the Court of Claims for a violation of the Federal constitution (Id., at 184). A violation of a self-executing provision of the New York State Constitution may provide the basis for an action in this Court, however, a violation does not automatically create that basis. The constitutional provision should impose clearly defined duties on the State's officers and employees, the duty imposed should be independent of any common-law tort or other remedy, and damages should be necessary to further the purpose of the provisions and deter future violations (Id., at 187-192).
Here, Claimant's only allegation to a specific constitutional violation, is the alleged due process violation for not being timely made eligible for parole. To the extent that Claimant is alleging violations of the Federal Constitution, this Court lacks jurisdiction to hear the matter (Brown v State of New York, 89 NY2d at 186). If the due process violations involve our State Constitution, the allegations of administrative wrongdoing, i.e., that Claimant was denied participation in certain programs, suffered a "loss of good time" and was denied a timely scheduled parole interview or his date for eligibility for parole was miscalculated, raise issues which could have been reviewed in an Article 78 proceeding in Supreme Court (see Trammell v State of New York, UID No. 2014-041-051 [Ct Cl, Milano, J., Sept. 17, 2014]; see also Matter of Moore v Graves, 52 AD2d 1052 [4th Dept 1976]). "The jurisdiction of the Court of Claims is invoked where money damages are the essential object of the claim" rather than where the claim is really equitable in nature and essentially involves a review of the action or inaction of a State agency or department (see Matter of Gross v Perales, 72 NY2d 231, 236 [1988]; Harvard Fin. Servs. v State of New York, 266 AD2d 685 [3d Dept 1999]; Matter of Rosa v Fischer, 87 AD3d 1252 [3d Dept 2011]; Matter of Moore v Graves, 52 AD2d 1052 [4th Dept 1976]; Trammell v State of New York, UID No. 2014-041-051 [Ct Cl, Milano, J., Sept. 17, 2014]). Under these circumstances, it is not necessary to resort to a constitutional tort cause of action. Claimant essentially seeks the Court's review of DOCCS' administrative determinations and he had another means of redress.
Based upon the foregoing, Claimant has not stated a viable cause of action in the Court of Claims for constitutional tort relief.
Claim for Loss Property
Court of Claims Act section 10 (9) provides that an inmate's claim for "recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy established for inmates by the department" of corrections and community supervision. Such claim must be filed and served within 120 days after the administrative remedy has been exhausted. Here, Claimant alleges that while he was incarcerated, the State lost his bag containing all of his legal documents. Claimant filed an administrative loss property claim with DOCCS on November 6, 2012. His claim was approved in part and an offer was made to reimburse Claimant $62.50. A letter was sent to Claimant dated March 18, 2013, reflecting the reimbursement offer and providing Claimant with the form he needed to sign and return in order to receive the reimbursement. Claimant acknowledges in his affidavit that he did not respond to the offer of reimbursement. Although Claimant could have appealed the determination on his claim to the superintendent, he did not do so. Since Claimant did not respond to the reimbursement offer, his loss property claim was closed on April 12, 2013.
Claimant's bailment claim must be dismissed for failure to comply with Court of Claims Act section 10 (9). Claimant did not exhaust his administrative remedies and, in any event, this claim was filed more than a year after his loss property administrative claim was closed.
Finally, Claimant's affidavit in opposition to Defendant's motion recounts work he was allegedly forced to perform as an inmate in violation of certain medical restrictions. Claimant seems to imply that because the correctional facility needed a mechanic, they continued to incarcerate him for its own benefit. These allegations are not set forth in the claim and are in no way inferable from the facts alleged therein. To the extent Claimant now seeks to assert some cause of action for this conduct, his effort fails for noncompliance with Court of Claims Act section 11 (b) (Lepkowski v State of New York, 1 NY3d 201 [2003]; Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]).
Accordingly, based upon the foregoing Defendant's motion is GRANTED and the claim must be DISMISSED.
January 20, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
1) Notice of Motion.
2) Affirmation of Edward F. McArdle, Esquire, Assistant Attorney General, in support with exhibits attached thereto.
3) Affirmation of Jodie L. Ryan, Esquire, in opposition, with exhibits attached thereto.
4) Affidavit of Anthony P. Cassata, sworn to November 25, 2014, in opposition.
5) Claimant's Memorandum of Law dated November 25, 2014.