Opinion
# 2014-044-571 Claim No. None Motion No. M-85680
12-09-2014
VICTOR MERCEDES v. THE STATE OF NEW YORK
VICTOR MERCEDES, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Roberto Barbosa, Assistant Attorney General
Synopsis
Court denied inmate's motion for permission to late file claim regarding denial of visitation with his mother while incarcerated, as the proposed claim lacked the appearance of merit.
Case information
| UID: | 2014-044-571 |
| Claimant(s): | VICTOR MERCEDES |
| Claimant short name: | MERCEDES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has sua sponte amended the caption to reflect the State of New York as the sole proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-85680 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | VICTOR MERCEDES, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Roberto Barbosa, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 9, 2014 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, moves for permission "to file a late notice of intention in order to file a late claim." Claimant seeks to recover damages for the alleged denial of visitation with his mother which occurred while he was in the custody of the Department of Corrections and Community Supervision at Elmira Correctional Facility (Elmira). Defendant State of New York (defendant) opposes the motion. Claimant replies.
While Court of Claims Act § 10 (6) sets forth the procedure whereby a claimant may request permission from the Court to serve and file a late claim, there is no such equivalent provision whereby a proposed claimant might seek permission to file a late notice of intention. The Court will therefore treat claimant's motion as one to file and serve a late claim and will conduct the appropriate analysis under Court of Claims Act § 10 (6). Claimant's proposed "Notice of Intention to File Claim" attached to his affidavit in support of this motion will be treated and referred to as the proposed claim.
A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act § 10 [6]). The proposed claim alleges that Miriam Rincon, claimant's mother, attempted to visit him at Elmira on April 27, 2014, but was refused when staff informed her that there was a notation in the computer system restricting her visitation. Claimant alleges that, among other things, defendant's negligence in failing to remove the restriction caused both he and Rincon mental anguish. The statute of limitations for a negligence cause of action is three years from the date of accrual (CPLR 214 [5]). Accordingly, this motion mailed on September 8, 2014 is timely (Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2d Dept 2001]).
Claimant also asserts that staff intentionally and maliciously fabricated the visitation restriction. To the extent that claimant is attempting to assert a cause of action for intentional infliction of emotional distress, the motion must be denied. Although the one-year statute of limitations applicable to said cause of action has not expired (CPLR 215; see Velaire v City of Schenectady, 235 AD2d 647, 649 [3d Dept 1997], lv denied 89 NY2d 816 [1997]), it is well-settled that "where the act complained of constituted official conduct, public policy prohibits the maintenance of a suit against the State for intentional infliction of emotional distress" (Brown v State of New York, 125 AD2d 750, 752 [3d Dept 1986], lv dismissed 70 NY2d 747 [1987]). Claimant further asserts that his and Rincon's federal due process rights were violated. However, the Court of Claims does not have jurisdiction to consider Federal Constitutional claims, including civil rights violations brought under 42 USC § 1983 (see e.g. Brown v State of New York, 89 NY2d 172, 184 [1996]).
The Court notes that many of the cases cited by claimants to support their contention that they may proceed with these three pending claims, notwithstanding the affirmance of claimant's criminal conviction, are inapplicable, as those cases concern violations of the Federal Constitution and actions brought pursuant to 42 USC § 1983 (see e.g. Lambert v City of Dumas, 187 F3d 931 [1999]; Gonzalez v Entress, 133 F3d 551 [1997]; Soares v State of Connecticut, Dept. of Envtl. Protection, 8 F3d 917 [1993]). '
The Court now turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act § 10 (6) in determining a motion to permit a late filing of a claim are whether:
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;
5) 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 defendant; and
6) claimant has any other available remedy.
Claimant asserts that as a layperson, he was not aware of the 90-day period in which to serve a notice of intention or to file and serve a claim. He further contends that his lack of knowledge was compounded because of his confinement in Involuntary Protective Custody, which affected his ability to confer with counsel and to access the law library. Claimant's ignorance of the requirements of the Court of Claims Act and his lack of access to the law library or counsel because of his incarceration are not adequate excuses for his delay in timely serving a notice of intention or timely filing and serving a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; Plate v State of New York, 92 Misc 2d 1033 [Ct Cl 1978]). Accordingly, this factor weighs against claimant.
The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. Defendant candidly admits that it has knowledge of the essential facts, an opportunity to investigate the matter, and that it will not suffer any prejudice because of the late filing of a claim. Thus, these three factors weigh in favor of claimant.
Another factor to be considered is whether claimant has any other available remedy. Claimant seeks to recover damages for defendant's allegedly wrongful denial of visitation privileges while claimant was confined in a State correctional facility. Defendant concedes that claimant has no other available remedy. Accordingly, this factor weighs in favor of claimant.
Notwithstanding defendant's concession of this factor, it appears that claimant has already pursued an alternate remedy by utilizing the Inmate Grievance Program. Claimant filed Grievance No. EL42-587-14 concerning the incident which was granted to the extent that the notation in the computer system pertaining to Rincon's visitation restriction was removed (Affidavit of Victor Mercedes, sworn to Sept. 8, 2014, in Support of Motion, Exhibits C-3 and D-4).
The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In order to establish a meritorious claim, a claimant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, 154 Misc 2d 199, 202-203 [Ct Cl 1992]).
In the proposed claim, claimant alleges that his mother has been visiting him throughout his 19 years of incarceration and that it is only since he has been located in Elmira that her visits have been denied. He asserts that Elmira staff "falsified fabricated inaccurate fictitious information concerning the visitation notation stipulated in Elmira['s] . . . computer system" in order to deny visitation with Rincon. Based upon information contained in the numerous exhibits attached to claimant's motion, it appears that visitation privileges for both Rincon and Betania Fernandez (claimant's wife) were suspended in January 1998 for conspiracy to smuggle drugs into Wende Correctional Facility. Effective February 1, 2001, James Conway, First Deputy Superintendent of Attica Correctional Facility reinstated non-contact visitation privileges for both Rincon and Fernandez. Thereafter, First Deputy Superintendent Conway restored contact visitation privileges with both women effective August 1, 2001. Nevertheless, on October 4, 2012, Rincon was apparently refused entry into Elmira for visitation with claimant. Claimant filed Grievance No. EL40-131-12 and an investigation revealed that visitation was denied because of a notation in the computer system. However, after a manual search of claimant's records, staff discovered Conway's memorandum from 2001 which restored Rincon's visitation. The grievance was granted to the extent that claimant's "mother will be allowed to visit and [the] computer system will be updated."
Affidavit of Victor Mercedes, sworn to Sept. 8, 2014, in Support of Motion, Exhibit B.
Affidavit of Victor Mercedes, sworn to Sept. 8, 2014, in Support of Motion, Exhibit G.
Thereafter, Rincon visited claimant on March 23, 2013 and August 17, 2013. However, she was once again denied visitation on April 27, 2014. As set forth previously herein, claimant filed Grievance No. EL42-587-14 concerning the incident (see n 4 supra). The grievance was granted and the notation of visitor restriction was removed from the computer system. Claimant was notified that his mother would again be allowed to visit. Rincon also filed a complaint on May 19, 2014 regarding the incident. By letter dated May 27, 2014, she was informed that an investigation revealed that at the time of her attempted visit, there was a notation which indicated that she was not approved to visit any State correctional facility. She was assured "that the disapproved notation in the computer system had remained in error and was promptly corrected by the area Sergeant." Claimant now seeks permission to file and serve a late claim to recover money damages stemming from the denial of visitation.
Affirmation of Assistant Attorney General (AAG) Roberto Barbosa, dated Oct. 17, 2014, in Opposition to Motion, Exhibit C. Notably and contrary to all other documentation, the visitor log appears to indicate that claimant's mother did visit with him on October 4, 2012.
Id. Exhibit D.
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It is well-settled that there is no Federal or State Constitutional right to visitation for prison inmates "inasmuch as denial of prison access to a particular visitor is well within the terms of confinement ordinarily contemplated by a prison sentence" (Matter of Vasquez v Coombe, 238 AD2d 631, 631 [3d Dept 1997] [internal quotation marks and citations omitted]; see Matter of Encarnacion v Goord, 8 AD3d 850 [3d Dept 2004]). Accordingly, to the extent that claimant may be alleging a cause of action for violation of the State Constitution, it lacks the appearance of merit.
Moreover, inmate visitation is governed by 7 NYCRR part 200, and to the extent that claimant may be alleging a violation of these regulations, the purported cause of action is also without merit. Initially, these regulations do not expressly authorize a private right of action for the denial of visitation. Further, given claimant's ability to challenge the denial of visitation privileges both administratively through the Inmate Grievance Program (see generally 7 NYCRR part 701) and judicially pursuant to CPLR Article 78 (see e.g. Matter of Grigger v Goord, 27 AD3d 803 [3d Dept 2006], lv denied 7 NY3d 702 [2006]), there is no basis to imply a private right of action for money damages in the Court of Claims (see generally Barnes v State of New York, UID No. 2013-015-561 [Ct Cl, Collins, J., Aug. 21, 2013]). In any event, because the denial of visitation was based upon Rincon's inability to visit claimant rather than his ability to receive her as a visitor, claimant lacks standing to challenge the denial (see Matter of Grigger, 27 AD3d at 803; Vail v State of New York, UID No. 2010-031-505 [Ct Cl, Minarik, J., Feb. 2, 2010]), and thus any cause of action for denial of vitiation lacks the appearance of merit.
Lastly, to the extent that claimant may be asserting a cause of action for negligent infliction of emotional distress based upon the denial of visitation, he is "required to show a breach of duty owed to [him] which unreasonably endangered [his] physical safety, or caused [him] to fear for [his] own safety" (Graber v Bachman, 27 AD3d 986, 987 [3d Dept 2006]). Because claimant's proposed claim lacks any allegation that his physical safety was endangered or that he was otherwise in fear for his safety (see also Schultes v Kane, 50 AD3d 1277, 1278-1279 [3d Dept 2008]; Miller v Chalom, 269 AD2d 37, 40 [3d Dept 2000]), he has failed to establish even an initial appearance of merit with respect to a cause of action for negligent infliction of emotional distress. Accordingly, the crucial factor of merit weighs against him.
Although four of the six statutory factors weigh in favor of claimant, "where 'the excuse offered for the delay is inadequate and the proposed claim is of questionable merit' " (Matter of Robinson v State of New York, 35 AD3d 948, 949-950 [3d Dept 2006], quoting Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]), denial of a late claim application is appropriate (see Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). Accordingly, claimant's Motion No. M-85680 for permission to file and serve a late claim is denied in its entirety.
December 9, 2014
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on claimant's motion:
1) Notice of Motion filed on September 22, 2014; Affidavit of Victor Mercedes, sworn to on September 8, 2014, and attached exhibits.
2) Affirmation in Opposition of Roberto Barbosa, AAG, dated October 17, 2014, and attached exhibits.
3) Reply Affidavit of Victor Mercedes, sworn to on October 27, 2014, and attachments.