Opinion
# 2016-041-001 Claim No. 120771 Motion No. M-86642 Motion No. M-86643 Cross-Motion No. CM-86709 Cross-Motion No. CM-86882
01-12-2016
JAVELL FOXv. THE STATE OF NEW YORK
JAVELL FOX Pro Se State of New York: HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Thomas Trace, Esq. Senior Attorney
Synopsis
Application to file late claim alleging state and federal constitutional torts is denied where proposed claim lacks appearance of merit; motion to amend claim is denied where no proposed amended claim is submitted; claim alleging that the Oneida County Public Defender and the New York State Board of Parole violated claimant's state and federal constitutional rights by adjourning claimant's parole revocation hearing without claimant's consent is dismissed for lack of jurisdiction and failure to state a cause of action.
Case information
| UID: | 2016-041-001 |
| Claimant(s): | JAVELL FOX |
| Claimant short name: | FOX |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption reflects the only proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120771 |
| Motion number(s): | M-86642, M-86643 |
| Cross-motion number(s): | CM-86709, CM-86882 |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | JAVELL FOX Pro Se |
| Defendant's attorney: | State of New York: HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Thomas Trace, Esq. Senior Attorney |
| Third-party defendant's attorney: | County of Oneida: KERNAN PROFESSIONAL GROUP, LLP By: David A. Bagley, Esq. Of Counsel |
| Signature date: | January 12, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate at Eastern Correctional Facility, moves (M-86643) for permission to file a late claim pursuant to Court of Claims Act § 10 (6) and additionally moves (M-86642) to amend his previously filed claim (120771). Defendants State of New York (State) and County of Oneida (County) each oppose the claimant's motions and each cross-move (County: CM-86709) and (State: CM-86882) to dismiss claim 120771 for lack of jurisdiction and, in the State's motion, for failure to state a cause of action. Claimant has not submitted opposition to the defendants' respective cross-motions to dismiss the claim.
The Court will first consider claimant's motion to file a late claim. Court of Claims Act § 10 (6) provides that:
"[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."
Recognizing that "it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant's motion" (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]), claimant's application to file a late claim is denied.
Section 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have "the appearance of merit."
A review of the record on motion M-86643 reveals that the gravaman of claimant's cause of action is the purported improper acts and/or omissions of the County of Oneida Public Defender's Office in representing claimant with respect to a parole revocation hearing. The proposed claim alleges that the defendant County of Oneida, through its Public Defender's Office, violated claimant's state and federal constitutional rights by obtaining an adjournment of claimant's parole revocation hearing without claimant's consent. The proposed claim contains no actionable allegations of intentional or negligent acts or omissions by the State of New York.
The Court of Claims is a court of limited jurisdiction, charged with "exclusive jurisdiction over actions for money damages against the State," based upon the acts or omissions of its agencies or employees, where the State is the real party in interest (Monreal v New York State Dept. of Health, 38 AD3d 1118, 1119 [3d Dept 2007]; Woodward v State of New York, 23 AD3d 852, 855-856 [3d Dept 2005], lv dismissed 6 NY3d 807 [2006]; NY Const., Art. VI, § 9; Court of Claims Act § 9).
The allegations of the proposed claim show that the real party in interest is the County of Oneida rather than the State of New York. The Court thus lacks jurisdiction over the claim proposed to be brought against the State of New York and the County of Oneida (see Morell v Balasubramanian, 70 NY2d 297 [1987]).
The proposed claim lacks even the appearance of merit and the application (M-86643) is denied.
Claimant also moves (M-86642) for permission to file and serve an amended claim.
CPLR 3025 (b) provides for the amendment of a pleading by a party either by stipulation or leave of court. The statute requires that "[a]ny motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading."
The claimant's motion (M-86642) to amend his claim is denied because claimant has failed to "submit a proposed amended pleading with his motion for leave to amend the complaint" (Dragon Head LLC v Elkman, 102 AD3d 552, 553 [1st Dept 2013]).
The defendants State of New York and County of Oneida each cross-move to dismiss claim 120771.
The claim alleges that employees of the New York State Board of Parole violated claimant's "state constitutional rights" by adjourning claimant's parole revocation hearing "at the request of the Attorney whom I have never met."
With respect to the County of Oneida (CM-86709), the claim must be dismissed because the Court of Claims lacks subject matter jurisdiction over it for the reasons set forth above and repeated here for the sake of clarity:
The Court of Claims is a court of limited jurisdiction, charged with "exclusive jurisdiction over actions for money damages against the State," based upon the acts or omissions of its agencies or employees, where the State is the real party in interest (Monreal v New York State Dept. of Health, 38 AD3d 1118, 1119 [3d Dept 2007]; Woodward v State of New York, 23 AD3d 852, 855-856 [3d Dept 2005], lv dismissed 6 NY3d 807 [2006]; NY Const., Art. VI, § 9; Court of Claims Act § 9).
With respect to the State of New York (CM-86882), the Court lacks subject matter jurisdiction over the action because the claim seeks to review the determination of an administrative agency: The New York State Board of Parole.
The jurisdiction of the 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 [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])."
Claimant challenges the administrative acts and/or omissions of the New York State Board of Parole. The Court lacks jurisdiction to review the determination of the Board of Parole and the appropriate venue for such a challenge is a CPLR article 78 proceeding in Supreme Court (Rivera v State of New York, 52 AD3d 1075 [3d Dept 2008]).
Additionally, the claim fails to state a cause of action against the State of New York. Although the Court of Appeals has recognized a narrowly defined cause of action for a state constitutional tort in the Court of Claims (Brown v State of New York, 89 NY2d 172, 177-178 [1996]), "no such claim will lie where the claimant has an adequate remedy in an alternate forum" (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1150 [3d Dept 2009]; see Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]; Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]). Claimant could have raised his state constitutional claim in the context of an article 78 proceeding in New York State Supreme Court (see Bullard v State of New York, 307 AD2d 676, 678-679 [3d Dept 2003]; Haywood v Drown, 129 S Ct 2108 [2009]). His state constitutional tort claim thus "does not lie" in the Court of Claims (Shelton, 61 AD3d at 1151).
With respect to the allegation that claimant's federal constitutional rights were violated, the law is settled that "claims for damages against the State based on alleged deprivations of rights under the US Constitution are beyond the jurisdiction of the Court of Claims" (Shelton, 61 AD3d at 1151; see Matter of Gable Transport, Inc. v State of New York, 29 AD3d 1125 [3d Dept 2006]; Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]; Zagarella v State of New York, 149 AD2d 503 [2d Dept 1989]; Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986]).
Claimant's cause of action alleging violation of his state and federal constitutional rights fails to state a cause of action.
For all of the foregoing reasons, the respective cross-motions of the County of Oneida and State of New York are granted and claim 120771 is dismissed.
January 12, 2016
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion (M-86643) To File a Late Claim, filed May 4, 2015; 2. Unsworn "affidavit" of Javell Fox, and attached exhibits, including proposed claim; 3. Notice of Motion (M-86642) For Leave To Amend, filed May 4, 2015; 4. Affidavit of Javell Fox, sworn to April 30, 2015; 5. Notice of Cross-Motion (CM-86709) To Dismiss (County of Oneida); 6. Affirmation of David R. Bagley, dated May 12, 2015; 7. Notice of Cross-Motion (CM-86882) To Dismiss (State of New York); 8. Affirmation of Thomas Trace, dated June 26, 2015, and attached exhibits.