Opinion
# 2019-038-599 Claim No. 131995 Motion No. M-94379 Cross-Motion No. CM-94493
10-11-2019
RASHAD SCOTT v. THE STATE OF NEW YORK
RASHAD SCOTT, Pro se LETITIA JAMES, Attorney General of the State of New York By: Jeane L. Strickland Smith, Assistant Attorney General
Synopsis
Case information
| UID: | 2019-038-599 |
| Claimant(s): | RASHAD SCOTT |
| Claimant short name: | SCOTT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131995 |
| Motion number(s): | M-94379 |
| Cross-motion number(s): | CM-94493 |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | RASHAD SCOTT, Pro se |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Jeane L. Strickland Smith, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 11, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual currently incarcerated in a State facility, filed this claim seeking compensation for items of property that were allegedly taken from his cell at Green Haven Correctional Facility (CF) during a search on December 5, 2017. Claimant now moves for a default judgment against defendant and for sanctions on the ground that defendant has not answered the claim and thus has failed to appear. Defendant opposes the motion for a default judgment on the ground that it served a verified answer to the claim and cross-moves to dismiss the claim on the ground that claimant failed to exhaust his administrative remedies prior to filing the claim. Claimant opposes the cross motion.
The claim alleges that on December 5, 2017, during a search of "[c]laimant's housing location," Department of Corrections and Community Supervision (DOCCS) personnel "removed multiple items of [c]laimant's personal property without any authorization or leaving [c]laimant with any cell search slip or [c]ontraband [r]eceipt" (Claim No. 131995, ¶ 2). The claim further alleges that defendant's agents "under questionable circumstances, refused to fully process" claimant's inmate property claim (id.).
With respect to claimant's motion for a default judgment, claimant argues in support of the motion that defendant has not served claimant with an answer to his claim nor has defendant moved pursuant to CPLR 3012 (d) for an extension of its time to answer the claim, and thus defendant has failed to appear (see Intentional Admissions by Silence, Under CPLR 3018). In opposition, defendant argues that it has not defaulted on this claim because on October 22, 2018 it served on claimant and filed with the Clerk of the Court of Claims a Verified Answer to the claim (see Strickland Smith Affirmation, ¶ 4, Exhibits A-B). In reply, claimant apparently concedes that the answer may not have reached him because he was temporarily transferred to a different facility for a court appearance (see Scott Sworn Reply, ¶ 3).
Defendant demonstrates, and the records of this Court confirm, that defendant served and filed its Verified Answer on October 22, 2018 (see Strickland Smith Affirmation, ¶ 4, Exhibits A-B). Accordingly, defendant has established that it is not in default in answering the claim, and claimant's motion for a default judgment will be denied. Claimant's request for sanctions will likewise be denied inasmuch as defendant has established that it did not default in answering the claim and as claimant has made no argument that defendant's engaged in frivolous conduct (see 22 NYCRR § 130-1.1 [c]).
In any event, even if claimant had successfully demonstrated that defendant had failed to answer the claim, a default judgment is not available against the State in the Court of Claims (see Court of Claims Act § 12 [1] ["No judgment shall be granted on any claim against the State except upon such legal evidence as would established liability against an individual or corporation in a court of law or equity"]; see also Driscoll v New York State Attorney General's Office Litigation Unit, 69 AD3d 515, 516 [1st Dept 2010] [the Court of Claims "correctly denied claimant's motion for a default judgment as contrary to Court of Claims Act § 12 (1)"]; Anderson v State of New York, UID No. 2019-038-507 [Ct Cl, DeBow, J., Jan. 29, 2019]; Galunas v State of New York, UID No. 2016-044-567 [Ct Cl, Schaewe, J., Dec. 14, 2016]).
Turning to defendant's cross motion, defendant argues that the claim must be dismissed for claimant's failure to exhaust his administrative remedies prior to filing this claim, as required by Court of Claims Act § 10 (9). Defendant argues that claimant's inmate property claim was rejected as untimely and that claimant was therefore "precluded from exhausting his administrative remedies . . . and is now barred from filing a claim in the Court of Claims" (Strickland Smith Affirmation, ¶ 6). Claimant opposes the cross motion on the ground that he timely filed his initial inmate property claim but was prevented from pursuing that process by the malfeasance of DOCCS employees (see Scott Sworn Reply, ¶¶ 4-8).
Notwithstanding that defendant has not argued that the claim is untimely, claimant apparently seeks to prolong his time to file his lost property claim based on the doctrine of continuing harm (see Scott Sworn Reply, ¶¶ 9-12) and asserts that the 120-day period to file his lost property claim in the Court of Claims should be measured from June 22, 2018 (see id. at ¶ 12), the date on which he received a memorandum informing him that his "claim [was] currently under review in Albany" and that he "should receive a response in the near future" (Claim No. 131995, Exhibit J [Memorandum of B. Kelly, Superintendent for Administration, dated June 22, 2018]).
The Court of Claims Act provides that a prison inmate's lost property claim "may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established . . . by [DOCCS]" (Court of Claims Act § 10 [9] [emphasis added]). The relevant DOCCS regulations provide for a two-step adjudication of inmate personal property claims, involving an initial review under which a claim is approved or denied and then an administrative appeal if the initial review is unfavorable to the claimant (see 7 NYCRR 1700.3). DOCCS regulations provide that in order to approve a claim for loss of property, the reviewer must determine inter alia "that the inmate has made a timely claim" (7 NYCRR 1700.6 [a][1]). Pursuant to DOCCS regulations, an inmate must file an inmate claim form "within five days after the discovery of the loss," although the "timeframe should be interpreted with some flexibility" and "[t]here may be extenuating circumstances which would excuse late filing" (7 NYCRR 1700.4 [a]).
DOCCS regulations provide that "extenuating circumstances that would call for discretion to excuse late filing, includ[e]: (1) [that the] inmate was in transit at the time of the loss, in an outside hospital, enroute to a new facility, in restricted housing where access to required proof and forms may have been limited, and so on; (2) [that the] inmate was ill or otherwise unable to pursue the claim; (3) [that] it was not clear whether or not any loss had taken place, for example, facility staff indicated that they were still checking to find the property in question in the package room, IRC Office, housing unit storage areas, etc.; or (4) other unusual situations" (7 NYCRR 1700.6 [b] [1]-[4]).
The failure to exhaust the available administrative remedies deprives the Court of Claims of subject matter jurisdiction and requires that the claim be dismissed (see Williams v State of New York, 38 AD3d 646, 647 [2d Dept 2007]).
The documentary evidence establishes that claimant completed an inmate claim form and dated it December 10, 2017, and that the form was filed on January 4, 2018 (see Claim No. 131995, Exhibit A). The inmate claim was rejected on January 4, 2018 by CO D. Smith, who stated that "[a]s per directive #2733 inmate has 5 days to file a claim from notice of loss. Inmate states 12/5/17 cell search dates claim 12/10/17. Claim received 1/4/18 Superintendent's Office" (id., Part 3). Claimant appealed the rejection on January 4, 2018 and made the following statement:
"Claimant sent copies of this claim to the Institutional Steward (K. Swain) & the alleged Claim's Officer (D. Smith) on 12/10/17. This Claim was sent as a follow-up, due to NOT receiving any confirmation, to the Deputy Supt. of Administration this morning. Claimant has filed grievances in the past & has written formal complaints to the Superintendent, Thomas Griffen, about this Claim Officer's [truncated text]latory antics, lies, & unprofessionalism. This C.O. D. Smith's retaliatory practice [truncated text] he continues to contumaciously interfere with the process & expedited access to the courts or amicable resolution. Now he (again) has compromised this investigation"
(id., Part 4 [emphasis in original]). Claimant further stated in his appeal that the claim was the third copy of the inmate claim form he had submitted, and he referenced and attached two letters dated December 20, 2017 and December 24, 2017 that he had previously sent to D. Smith and the Institutional Steward seeking confirmation that his inmate claim form, which he mailed on December 10, 2017, had been received (see id., Exhibit B). On January 29, 2018, claimant wrote to Thomas Griffen, the Green Haven CF Superintendent, advising that he had mailed his "Inmate Claim Form Appeal" on January 4, 2018 and seeking confirmation that it had been received (id., Exhibit C). Claimant again noted that he had experienced problems with D. Smith and with the facility's mail system, and he expressed concern that these issues were negatively impacting his ability to access the courts (see id.). Attached to the claim are two memoranda from claimant to Green Haven CF Superintendent LaManna and a Deputy Superintendent for Administrative Services dated April 8, 2018 and June 18, 2018, respectively, stating that no decision had been rendered on his January 4, 2018 appeal and requesting a resolution of that appeal, which would enable him to bring a claim in the Court of Claims (see id., Exhibits G-H). In correspondence dated June 19, 2018, Stephen G. Brandow, Acting Deputy Commissioner for Administrative Services, responded to a letter from claimant requesting that the rejection of his claim be investigated by stating that "it has been determined that the claim will not be processed" because it was untimely, having been received on January 4, 2018 (Strickland Smith Affirmation, Exhibit C; see Claim No. 131995, Exhibit I).
In the December 20, 2017 memorandum, claimant further stated that "[t]his is NOT the first time that [claimant] had an issue with [Smith] interferring with [claimant's] claim process & access to the court(s)" (Claim No. 131995, Exhibit B [12/20/17 Scott Memorandum] [emphasis in original])
The documentary evidence fairly establishes that claimant exhausted his administrative remedies for the purposes of challenging the rejection of his claim as untimely through a CPLR article 78 proceeding inasmuch as he attempted to appeal its rejection, and his appeal was finally determined by Brandow's June 19, 2018 correspondence stating that his claim would not be processed because it was untimely. Thus, claimant was free to challenge the rejection of his claim as untimely through a proceeding pursuant to CPLR article 78 (see CPLR 7803 [3]). With respect to claims against the State for money damages, however, the State's waiver of sovereign immunity "is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature" (Lepkowski v State of New York, 1 NY3d 201, 206 [2003]), including Court of Claims Act § 10 (9), which, as discussed above, prohibits an inmate from filing a lost property claim "unless and until the inmate has exhausted the personal property claims administrative remedy, established . . . by [DOCCS]."
Here, claimant's lost property claim was not accepted for filing within five days of the discovery of the loss, as required by 7 NYCRR § 1700.4 (a), and it was rejected on that basis rather than subjected to the initial review process (see Claim No. 131995, Exhibit A [Inmate Claim Form, Part 3]). Thus, although claimant purported to appeal from the rejection of that untimely claim, the evidence establishes that the claim was never processed (see Strickland Smith Affirmation, Exhibit C), and that the merits of the claim were never reached. Thus, claimant did not exhaust his administrative remedies as required by the Court of Claims Act before filing the instant claim (see Kolnacki v State of New York, 8 NY3d 277, 280 [2007] ["statutory requirements conditioning suit must be strictly construed"]; see also Dowling v Holland, 245 AD2d 167, 169 [1st Dept 1997] [concluding in a real property dispute that a tenant's failure to timely file a Petition for Administrative Review "constitute(d) a failure to exhaust administrative remedies"]; Polak v Kavanah, 48 AD2d 840, 840 [2d Dept 1975] [concluding in the context of a zoning dispute that "(t)he requirement of exhaustion of administrative remedies assumes that adequate relief may be obtained under the (administrative regulations); a failure to seek such relief will render the action premature"]).
Notwithstanding that claimant did not exhaust his administrative remedies for the purposes of commencing this claim, the doctrine of equitable estoppel may apply to preclude defendant from asserting this jurisdictional defense. Although typically "an estoppel may not be applied to the State when it exercises a governmental function" (Stroud v State of New York, 184 Misc 2d 876, 878 [Ct Cl 2000], it may be invoked "if it is shown that a manifest injustice resulted from actions taken by the agency in its proprietary or contractual capacity" (Matter of Branca v Board of Educ., Sachem Cent. School Dist. at Holbrook, 239 AD2d 494, 495-496 [2d Dept 1997]). When the State "acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment, the State should be estopped from asserting a defense which it otherwise could have raised" (Stroud, 184 Misc 2d at 878 [emphasis added]). Equitable estoppel has been invoked "against governmental entities where its misleading nonfeasance would otherwise result in manifest injustice, such as where the [claimant] has been the victim of bureaucratic confusion and deficiencies" (Agress v Clarkstown Cent. School Dist., 69 AD3d 769, 771 [2d Dept 2010] [internal quotation marks and citations omitted]; see Bender v New York City Heath & Hosp. Corp., 38 NY2d 662, 668 [1976] ["The equitable bar to a defense may arise by virtue of positive acts, or omissions where there was a duty to act"]). Specifically, in the Court of Claims, equitable estoppel may be applied due to the misfeasance or malfeasance of DOCCS officials in the performance of some act that prevented an incarcerated claimant from complying with the jurisdictional requirements of the Court of Claims Act (see Rivera v State of New York, 5 AD3d 881, 881 [3d Dept 2004]).
Here, the verified claim alleges and claimant avers in his sworn affidavit in opposition to this motion that he timely submitted an inmate claim form to Green Haven CF on December 10, 2017 (see Scott Sworn Reply, ¶ 6). Further, the contemporaneous documentary evidence corroborates claimant's sworn assertion that he timely submitted the claim and that he was frustrated in his ability to exhaust his administrative remedies by the failure of Green Haven CF Officials to properly process his timely claim (see Claim No. 131995, Exhibit A, Part 4 [Appeal Statement]; id., Exhibit B [12/20/17 and 12/24/17 Scott Memoranda]). Because claimant has proven prima facie that he timely submitted his administrative claim and that the misfeasance or malfeasance of prison officials resulted in his administrative claim not being considered, equitable estoppel should apply to preclude the jurisdictional defense that claimant failed to exhaust his administrative remedies. Defendant has failed to address claimant's claims or to submit an affidavit or other sworn testimony of any official with personal knowledge that the administrative claim was not filed in a timely manner, or that there was no misfeasance or malfeasance committed by correctional officials, and thus has not rebutted claimant's showing. Therefore, the Court finds that defendant is equitably estopped from asserting the jurisdictional defense that claimant has failed to exhaust his administrative remedies, and defendant's motion to dismiss will be denied.
Accordingly, it is
ORDERED, that claimant's motion number M-94379 is DENIED; and it is further
ORDERED, that defendant's cross motion number CM-94493 is DENIED.
October 11, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: 1. Claim No. 131995, filed September 17, 2018, with Exhibits A-M; 2. Notice of Motion (M-94379), dated July 24, 2019; 3. Intentional Admissions by Silence, Under CPLR 3018, dated July 24, 2019, with Exhibits 1-2; 4. Notice of Cross-Motion (CM-94493), dated August 27, 2019; 5. Affirmation of Jeane L. Strickland Smith, AAG, in Support of Cross-Motion to Dismiss and Affirmation in Opposition to Default Judgment, dated August 27, 2019, with Exhibits A-C; 6. Reply of Rashad Scott to Defendant's Notice of Cross Motion, sworn to September 17, 2019.