Claimant's motion to strike ten affirmative defenses granted in part, as four of the affirmative defenses were shown to be without merit.
|Claimant short name:||PAGE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||KENNETH PAGE, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 12, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim alleging that a correction officer falsified an inmate misbehavior report (IMR) on August 22, 2017, and he seeks monetary compensation on various theories. Claimant moves for an order striking all ten affirmative defenses that are asserted in defendant's answer. Defendant opposes the motion.
"A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit" (CPLR 3211 [b] [emphasis added]). "[A]n affirmative defense should not be dismissed if there is any doubt as to its availability" (Thy Tran v Avis Rent A Car, 289 AD2d 731, 732 [3d Dept 2001]; see Nahrebeski v Molnar, 286 AD2d 891 [4th Dept 2001]). "It is well settled that '[o]n a motion to dismiss a defense pursuant to CPLR 3211 (b), all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof' " (Capital Tel. Co. v Motorola Communications & Elecs., 208 AD2d 1150, 1150 [3d Dept 1994], quoting Grunder v Recckio, 138 AD2d 923 [4th Dept 1988]; see Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]). The movant who seeks dismissal of defenses "[bears] the burden of demonstrating that those defenses [are] without merit as a matter of law" (Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept 2006]).
The First affirmative defense - that the claim fails to state a cause of action - "is harmless surplusage and a motion to strike it [pursuant to CPLR 3211(b)] should be denied as unnecessary" (Pump v Anchor Motor Frgt., 138 AD2d 849, 850 [3d Dept 1988]; see also Schmidt's Wholesale v Miller & Lehman Constr., 173 AD2d 1004, 1005 [3d Dept 1991]).
The Second and Third affirmative defenses assert that the defendant's agents took actions that were privileged as being judicial, quasi-judicial or discretionary determinations while acting within the scope of their duties and that defendant is therefore immunity from liability (see Verified Answer, ¶¶ 4-5). In an unsworn submission, claimant argues that the actions of defendant's agents were not privileged because their actions were not "prescribed by law or regulation," and that their actions were not discretionary, but rather were "intentional and malicious" (Page Opposition, ¶ 10). Claimant offers no competent or persuasive proof that defendant's actions were not discretionary, or that the actions of defendant's agents are not entitled to immunity under this defense. Thus, claimant has failed to establish that these defenses lack merit as a matter of law.
The Fourth affirmative defense (Verified Answer, ¶ 6) alleges that the injuries or damages sustained were caused in whole or part by the culpable conduct of the claimant or others. Although claimant purports to address this affirmative defense (see Page Opposition, at p.2 ), he offers no facts or argument regarding this defense, and has therefore failed to establish that this defense lacks merit as a matter of law.
The Fifth and Ninth affirmative defenses assert that the Court lacks subject matter jurisdiction because the claim does not comply with the pleading requirements of Court of Claims Act § 11 which include, among other things, that "[t]he claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained . . ." (Court of Claims Act § 11 [b]). The Fifth affirmative defense asserts that the pleading does not state the date or specific time when the claim accrued (Verified Answer, ¶ 7) and the Ninth affirmative defense asserts that the claim fails "to include an adequate description of the condition alleged in the claim as a cause of the incident" (id., ¶ 11).
In its "Statement of Facts," the claim alleges that on August 22, 2017 Correction Officer (CO) Ransom falsified a Tier II IMR containing two charges, that claimant was found not guilty of the two charges at a disciplinary hearing on August 28, 2017, that the employee manual prohibits employees from making a false report, and that during his confinement claimant was unable to attend religious services and was denied a daily meal, and that CO Ransom's actions constituted "abuse of authority, harassment, [and] malicious intent" (Claim No. 130406 [Statement of Facts]). Appended to the claim is a Civil Service Law § 75 complaint from claimant addressed to the Commissioner of the Department of Corrections and Community Supervision dated September 17, 2017 requesting that certain action be taken against CO Ransom due to certain misconduct, as well as an unsworn affidavit alleging additional facts relative to events on August 22, 2017 and claimant's inability to participate in religious services while confined, and supporting witness statements. Also appended to the claim is the IMR that CO Ransom issued on August 22, 2017 charging claimant with disobeying a direct order and lock-in procedures and the hearing officer's disposition finding claimant not guilty of those charges.
Claimant argues that "[c]laimant clearly point [sic] out the specific time when and date of accrual in his section 75. Witness declaration of statement and all relevant facts were sent to all parties with the correct dates, time and place of incident in this claim" and that the claim has an adequate description of the incident (see Page opposition, ¶¶ 11, 14). Defendant argues that the claim fails to state any dates of accrual and "the only dates referenced are in the supplemental materials claimant submitted with the Claim" (Rubinstein Affirmation, ¶ 10). Notwithstanding that a "copy of any writing which is attached to a pleading is part thereof for all purposes" (CPLR 3014), claimant has not demonstrated that the claim and its attachments completely and satisfactorily plead the specific time and accrual date of all of the causes of action alleged in the claim. Thus, the Fifth affirmative defense is not without merit as a matter of law and will not be dismissed.
However, the Court reaches a different conclusion about claimant's objection to the Ninth affirmative defense, which asserts that the claim fails to include an "adequate description of the condition alleged in the claim as a cause of the incident" (Verified Answer, ¶ 11 [emphasis added]). Defendant offers the impertinent argument that the defense is properly asserted because the claim lacks a clear accrual date, but the date of accrual has no bearing on the "nature of the claim" requirement in Court of Claims Act § 11. The claim as pleaded may be construed to assert various causes of action arising from CO Ransom's conduct, but it makes no allegations of landowner liability for injuries resulting from any defect or condition. Thus, because the claim includes no facts or cause of action to which the Ninth affirmative defense would be applicable, it will be stricken.
The Sixth and Eighth affirmative defenses assert that the Court lacks subject matter jurisdiction because the claim was not timely or properly served, respectively, as required by Court of Claims Act §§ 10 and 11 (Verified Answer, ¶¶ 8, 10). Claimant argues that there is no requirement that he serve a notice of intention and that he filed the claim with the Court. Defendant argues again that these defenses are properly stated inasmuch as the claim lacks a clear accrual date.
The earliest possible accrual date for the claim was August 22, 2017, and the claim was served on the Attorney General on October 13, 2017 (see Rubinstein Affirmation, Exhibit B), which was fewer than 90 days after August 22, 2017. Thus, the evidence demonstrates that the claim was not untimely served, and the Sixth affirmative defense lacks merit. The allegation on the Eighth affirmative defense that the claim was not "properly served within the applicable time frames" (Verified Answer, ¶ 10 [emphasis added]) does not identify the allegedly improper manner of service, and thus lacks sufficient particularity such that the defense has been waived by defendant (Court of Claims Act § 11 [c]). Accordingly, the Sixth and Eighth affirmative defenses will be stricken.
The Seventh affirmative defense asserts that the claim is barred by the applicable statute of limitations (see Verified Answer ¶ 9). The shortest period of limitation that would apply to this claim is one year (see CPLR 215 ). The claim was served within 90 days after the earliest possible accrual date in the claim, and thus, the seventh affirmative defense lacks merit, and will be stricken.
The Tenth affirmative defense asserts that "[t]o the extent the claim alleges civil rights violations the Court lacks subject matter jurisdiction over the claim and fails to state a cause of action against the State of New York" (Verified Answer, ¶ 12). Claimant asserts that the claim alleges violation of his due process rights under DOCCS regulations, the United States and New York Constitutions, and the Correction Law. However, claimant concedes that he is seeking to vindicate alleged violations of his federal constitutional rights, over which this Court lacks jurisdiction (see Carver v State of New York, 79 AD3d 1393, 1395 [3d Dept 2010], lv denied 17 NY3d 707 ), and thus, this defense does not lack merit as a matter of law.
Accordingly it is
ORDERED, that claimant's motion number M-91613 is GRANTED IN PART, to the extent that the Sixth, Seventh, Eighth and Ninth Affirmative Defenses asserted in defendant's verified answer, filed November 17, 2017, are hereby DISMISSED; and it is further
ORDERED, the claimant's motion number M-91613 is DENIED in all other respects.
April 12, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 130406, filed October 13, 2017, with Attachments;
(2) Verified Answer, filed November 17, 2017;
(3) Notice of Motion, dated December 28, 2017;
(4) Opposition of Kenneth Page in Response to AAG Reply to Vacate Claim, dated December 28, 2017;
(5) Affirmation of Heather R. Rubinstein, AAG, in Opposition to Claimant's motion to Strike Defenses, dated January 24, 2018, with Exhibits A-C.