Opinion
# 2017-038-530 Claim No. 128557 Motion No. M-89332
03-30-2017
WHITE, J., v. THE STATE OF NEW YORK
JOHN WHITE, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Christina Calabrese, Assistant Attorney General
Synopsis
Defendant's motion to dismiss the claim for failure to state a cause of action granted.
Case information
| UID: | 2017-038-530 |
| Claimant(s): | WHITE, J., |
| Claimant short name: | WHITE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128557 |
| Motion number(s): | M-89332 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | JOHN WHITE, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Christina Calabrese, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 30, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, filed this claim in which he alleges that his right to a jury trial was obstructed when defendant's agents intentionally destroyed an audio/video recording that would have been probative evidence at the trial of a claim for excessive force against an Upstate Correctional Facility (CF) correction officer (CO). Defendant moves in lieu of answer to dismiss the claim for failing to state a cause of action under CPLR 3211 (a) (7), and also seeks sanctions for frivolous conduct. Claimant opposes the motion.
The claim alleges that an incident of use of excessive force by an Upstate CF CO was captured on an audio/video recording, that defendant's agents were on notice that the recording related to the incident would be "relied upon as direct evidence" in the administrative grievance he filed (see Claim No. 128557, ¶ 2). The claim alleges that Upstate CF officials reviewed the audio/video recording and noted "official misconduct" and failed to "incorporate the evidence into the grievance investigation of excessive force" which constituted an abuse of discretion and dereliction of duty (see id.). The claim further alleges that a trial of his claim of excessive force was scheduled on September 19, 2016, that the Attorney General's Office acknowledged that there was notice to preserve the recording at issue, and that claimant discovered on September 12, 2016 that the audio/video recording was no longer in existence. The claim alleges that the recording could be destroyed at the direction of former Upstate CF Superintendent Rock, and that the Department of Corrections and Community Supervision (DOCCS) "encouraged [the] video's [sic] destruction by refusing to supervise whether ministerial discretion [sic] was being abused by [Superintendent] D. Rock, or any personnel" (id.). The claim alleges that the destruction of the recording "denied [claimant's] right to speech; to a Jury trial; and favorable evidence to substantiate [his] version of events" and was a "violation of state constitutional rights, including but not limited to safety being monitored by professionals with transparency" (id., ¶ 5).
On a motion to dismiss for failure to state a claim, "the court will 'accept 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])" (Nonnon v City of New York, 9 NY3d 825, 827 [2007]). In deciding a motion pursuant to CPLR 3211(a) (7), however, a court may freely consider affidavits submitted by the [claimant] to remedy any defects in the claim and "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Leon v Martinez, 84 NY2d at 88 [internal quotations and citations omitted]).
Defendant argues that the claim fails to state a claim because claimant has no right to a jury in the Court of Claims. Defendant further argues that the claim asserts a cause of action sounding in constitutional tort and should be dismissed because claimant has alternative remedies through other proceedings, i.e. institutional grievance, administrative appeal and CPLR article 78 proceeding. Claimant argues that the claim explicitly pleads that defendant's agents wilfully or negligently destroyed video evidence related to the excessive force incident that infringed upon his right to a jury trial and that the claim does not demand a jury trial. Claimant further contends that defendant's claim that he has another remedy is meritless and that defendant has failed to offer proof of his alternative remedies. Claimant further argues that DOCCS Dirrective 4555 imposed on defendant a duty to preserve the recording, and spoliation of evidence is cognizable tort, and that DOCCS encouraged the destruction of the recording by refusing to supervise Superintendent Rock.
A cause of action sounding in tort based upon alleged violations of the State constitution is a narrow remedy that is cognizable only when money damages due to the constitutional violation is the sole remedy available to the claimant, but not where the claimant has alternate available remedies (see Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]; Deleon v State of New York, 64 AD3d 840, 840-841 [3d Dept 2009], lv denied 13 NY3d 712 [2009]). Here, claimant had an alternative remedy for the alleged spoliation of evidence in that the issue of spoliation could have been addressed upon a motion by claimant for sanctions in the trial in which he sought to introduce the video recording. (see generally Ortega v City of New York, 9 NY3d 69, 76 [2007] ["When parties involved in litigation engage in destruction of evidence, a number of remedial options are provided in existing New York statutory common law"]; West v Goodyear Tire & Rubber Co., 167 F3d 776, 779 [2d Cir 1999] [federal district court may impose sanctions for spoliation of evidence with or without court order]). Moreover, as defendant correctly argues, claimant had an alternative remedy in the nature of an institutional grievance, which he filed in this case (see White "Affirmation" and Memo of Law, 9/12/16 Directive #4040 Institutional Grievance). If his grievance was denied, CPLR article 78 would provide judicial review and remedies with regard to the administrative grievance. Thus, the claim fails to state a cause of action sounding in state constitutional tort.
To the extent that claimant argues that the claim asserts a cause of action for negligent supervision (White "Affirmation" and Memo of Law, at ¶ 17), the pleading lacks factual allegations in support of such a cause of action. An employer may be held liable for the work-related negligence of its employees under the doctrine of respondeat superior, but the alternate theory of negligent training and supervision requires a showing that the employees in question were acting outside the scope of their employment, that DOCCS knew or reasonably should have known of their propensity to engage in the conduct that caused claimant's injuries, or that the alleged negligent training and supervision was a proximate cause of claimant's injuries (see Gray v Schenectady City School Dist., 86 AD3d 771, 773-774 [3d Dept 2011]). Both the claim and claimant's submission on the motion are bereft of allegations that any Upstate CF officials acted outside the scope of their duties when allegedly destroying the videotape, or that DOCCS knew or reasonably should have known of the propensity of Upstate CF employees to destroy the recording. To the extent that the claim could be construed as alleging negligence due to the breach of DOCCS Directive 4555, a cause of action predicated upon a violation of DOCCS directives is not viable in the Court of Claims (see Johnson v State of New York, UID No. 2003-019-560 [Ct Cl, Lebous, J., Sep. 24, 2003]). Nor can the claim state a cause of action for spoliation, as such a tort is not cognizable in New York (see Hillman v Sinha, 77 AD3d 887, 888 [2d Dept 2010] [independent tort of first party tort of spoliation not cognizable]; see also Ortega, 9 NY3d at 73, 79 [no independent tort of third-party negligent spoliation in New York and the remedy for spoliation by a party is a spoliation sanction against the offending party in the context of that litigation]). Accordingly, claimant does not have a cognizable cause of action, and defendant's motion to dismiss the claim will be granted.
That part of defendant's motion that seeks sanctions will be denied. "[T]he court, in its discretion, may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct" (22 NYCRR § 130-1.1 [a]). As pertinent to this matter, conduct is frivolous if "it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law" or if "it is taken primarily to . . . harass or maliciously injure another" (22 NYCRR § 130-1.1 [c] [1], [2]). "In determining whether conduct undertaken was frivolous, the court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis for the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party" (22 NYCRR § 130-1.1 [c]).
Defendant argues that claimant is an experienced pro se litigant and "[i]t certainly cannot be said that [he] is unaware of the fact that constitutional claims are not cognizable before this Court" as claimant has had a prior claim dismissed for failing to state a constitutional tort (see White v State of New York, UID No. 2015-038-535 [Ct Cl, DeBow, J., June 5, 2015]), and that claimant was "on notice as to exactly what the law is with regard to this issue" (Calabrese Affirmation, ¶ 10). Defendant argues that the claim is completely without merit and cannot be supported by reasonable argument, and that the claim was undertaken to harass DOCCS employees and that there is "no proof whatsoever that any of the allegations made are true, as there never is" (id., ¶ 11).
The Court disagrees with defendant's assertions. First, defendant is incorrect that state constitutional tort claims are not cognizable in this Court (see id., ¶ 10), as in some circumstances, it is clearly established that a constitutional tort is viable. The Court's dismissal of claimant's state constitutional tort claim in prior litigation might have greater bearing if that claim involved similar or identical facts, which it does not (see White v State of New York, UID No. 2015-038-535 [dismissal of state constitutional tort claim alleging that a CO harassed claimant]). The Court's prior decision informed claimant of the state of the law governing constitutional torts under the facts of that claim, but this claim asserts alternative legal theories that are unsupported by factual allegations or were not otherwise cognizable, and this pro se litigant may or may not know the state of the law within the context of the circumstances that gave rise to this claim. Finally, defendant offers no proof that this claim was asserted for the primary purpose of harassing DOCCS employees, and as issue is not yet joined, claimant is not yet required to come forth with proof in support of his claim.
Accordingly, it is
ORDERED, that defendant's motion number M-89332 is GRANTED IN PART, and claim number 128557 is DISMISSED; and it is further
ORDERED, that defendant's motion number M-89332 is DENIED in all other respects.
March 30, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 128557, filed September 19, 2016; (2) Notice of Motion, dated October 7, 2016; (3) Affirmation of Christina Calabrese, AAG, dated October 7, 2016, with Exhibit A; (4) "Affirmation" and Memo of Law of John White, sworn to December 7, 2016, with Attachment (9/12/16 Directive #4040 Institutional Grievance, sworn to September 15, 2016).