Opinion
# 2018-045-038 Claim No. 129390 Motion No. M-92324 Cross-Motion No. CM-92388
10-15-2018
ERWIN JACKSON v. THE STATE OF NEW YORK
Erwin Jackson, Pro Se Hon. Barbara D. Underwood, Attorney General By: Douglas H. Squire, Assistant Attorney General
Synopsis
Defendant's motion to dismiss due to res judicata, collateral estoppel, claim is premature and claim fails to state a cause of action. Claimant's cross motion in opposition and for sanctions.
Case information
| UID: | 2018-045-038 |
| Claimant(s): | ERWIN JACKSON |
| Claimant short name: | JACKSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129390 |
| Motion number(s): | M-92324 |
| Cross-motion number(s): | CM-92388 |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Erwin Jackson, Pro Se |
| Defendant's attorney: | Hon. Barbara D. Underwood, Attorney General By: Douglas H. Squire, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 15, 2018 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion; Defendant's Affirmation with annexed Exhibits A-D; and Claimant's Cross-Motion with annexed Exhibit A.
Defendant has brought this motion seeking an order dismissing the claim based on res judicata, collateral estoppel, failure to state a cause of action and the claim is premature. Claimant, Erwin Jackson, a pro se inmate, has brought a cross motion pursuant to CPLR 3211 (a) (2), (b) and (e) seeking an order dismissing defendant's motion and for the imposition of sanctions pursuant to 22 NYCRR 130.1-1(c).
Claimant alleges in his claim that on December 7, 2016 he wrote to the Nassau County Clerk requesting that her office make an immediate correction of claimant's October 27, 2009 Sentence and Commitment sheet and the January 26, 2010 Certified Certificate of Disposition that was prepared and generated by her office. Claimant wrote a second letter dated January 4, 2017 requesting the correction of the records. The Clerk's Office informed claimant that his letter had been forwarded to the County Court. The Nassau County Chief Court Clerk then informed claimant that one count of the indictment was dismissed earlier by the court, four other counts were running concurrently to each other and that the restitution and surcharges previously imposed still stand.
On a motion to dismiss pursuant to CPLR 3211, the court is required to "accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
Defendant argues that the gravamen of claimant's allegations in this case concern his wrongful confinement as a result of alleged negligence related to his sentence. Defendant argues that claimant has filed two previous claims that assert the same allegations and that both claims were previously dismissed. Defendant contends that the issues presented in the current claim have been previously litigated in the prior Court of Claims cases and thus the current case should be dismissed based upon res judicata or collateral estoppel.
However, defendant failed to raise collateral estoppel or res judicata as affirmative defenses in either a pre-answer motion to dismiss or in its answer. Consequently defendant waived those defenses and cannot raise them herein (see CPLR 3211 [a] [5], [e]; Matter of Brown v Stanford, 163 AD3d 1337 [3d Dept 2018]; Browne v Board of Educ., 122 AD3d 563 [2d Dept 2014]).
Defendant argues that claimant's claim of wrongful confinement should be dismissed since it was brought prematurely before the cause of action has accrued. Defendant also avers that claimant fails to state a cause of action sounding in negligence for which the Court of Claims may grant relief. Defendant continues that the Court of Claims is not the appropriate vehicle to challenge an error by a sentencing criminal court and that DOCCS is bound by the terms of the sentence order and commitment.
"While jurisdiction reposes in the Court of Claims where the essential nature of the claim against defendant is to recover money, it does not lie where monetary relief is incidental to the primary claim" (Washington v State, 151 AD3d 1142 [3d Dept 2016]; Jackson v State of New York, 139 AD3d 1293 [3d Dept 2016]; see also Court of Claims Act § 9). Here, claimant fails to state a cause of action sounding in either wrongful confinement/false imprisonment or negligence as his primary argument is that he is currently being confined unlawfully due to errors in resentencing and that any claim for related damages is incidental to this argument.
Additionally, a claim for wrongful confinement, which is a species of false imprisonment, accrues on the date the confinement is terminated (Matter of Kairis v State of New York, 113 AD3d 942 [3d Dept 2014]; Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]). Claimant's confinement has not terminated thus he has failed to state a cause of action for wrongful confinement. Consequently, that portion of the claim which alleges a cause of action for wrongful confinement/false imprisonment is dismissed.
Moreover, prison officials are conclusively bound by the contents of commitment papers accompanying a prisoner (Jackson v State of New York, 139 AD3d 1293 [3d Dept 2016]; Matter of Jackson v Fischer, 132 AD3d 1038 [3d Dept 2015]). Thus, DOCCS was required to comply with the plain terms of the last commitment order received.
Therefore, for the foregoing reasons, defendant's motion to dismiss is granted. Accordingly, claimant's cross motion is denied.
October 15, 2018
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims