Opinion
# 2012-010-042 Claim No. 118242 Motion No. M-82225
11-07-2012
DIANE WORD v. THE STATE OF NEW YORK
Synopsis
Defendant's motion to dismiss granted. No subject matter jurisdiction. Case information
UID: 2012-010-042 Claimant(s): DIANE WORD Claimant short name: WORD Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 118242 Motion number(s): M-82225 Cross-motion number(s): Judge: Terry Jane Ruderman DIANE WORD Claimant's attorney: Pro Se HON. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General for the State of New York By: Terrance K. DeRosa, Assistant Attorney General Third-party defendant's attorney: Signature date: November 7, 2012 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers numbered 1-2 were read and considered by the Court on defendant's motion to dismiss:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits, Memorandum of Law....................................1
Affirmation in Answer to Defendant .......................................................................2
Claim No. 118242 alleges that the State of New York Department of Corrections and Community Supervision (DOCCS) Central Office Review Committee denied claimant's grievance wherein she sought to wear her own personal belt over her state-issued outerwear to secure the coat during gusty winds and that this violated claimant's state and federal constitutional rights to wear her own belt. She further alleges intentional infliction of emotional distress. Defendant moves to dismiss.
DOCCS Directive 3801 makes no allowance for belts to be worn on coats (Defendant's Ex. B). Accordingly, claimant's institutional grievance was denied. Claimant's appeal to the superintendent was also denied. Claimant's challenge to the determination of her grievance is not appropriately brought in the Court of Claims because this Court does not have subject matter jurisdiction to hear these matters which may be heard in Supreme Court in a CPLR Article 78 proceeding (see Carver v State of New York, 79 AD3d 1393). Additionally, claimant's cause of action for intentional infliction of emotional distress warrants dismissal because such a claim may not be asserted against a government entity such as the State (see Ellison v City of New Rochelle, 62 AD3d 830). Claimant also cannot maintain a cause of action for alleged federal and state constitutional violations because this Court does not have subject matter jurisdiction to hear federal constitutional claims (see Carver v State of New York, 79 AD3d 1393, 1395; Lyles v State of New York, 2 AD3d 694, 696, affd on other grounds 3 NY3d 396) and a state constitutional claim will not be recognized where, as here, there is an available remedy at common-law (see Brown v State of New York, 89 NY2d 172; Lyles v State of New York, supra).
Accordingly, defendant's motion to dismiss Claim No. 118242 is hereby GRANTED.
November 7, 2012
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims