Claimant's motion to dismiss affirmative defense(s) granted in part. Affirmative defense of failure to comply with pleading requirements of Court of Claims Act § 11 (b) shown to be without merit as a matter of law.
|Claimant short name:||SCOTT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||RASHAD SCOTT, Pro se|
|Defendant's attorney:||BARBARA D. UNDERWOOD, Attorney General
of the State of New York
|Third-party defendant's attorney:|
|Signature date:||May 25, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking damages for the alleged destruction of his personal property by correction officers (COs) at Green Haven Correctional Facility (CF). Claimant moves for an order striking the "sole affirmative defense(s)" asserted in the verified answer (see Notice of Motion). Defendant has not submitted any papers on the motion.
The claim asserts that:
"[a]t approximately 5:15 a.m., while performing prayer, Claimant's cell door was snatched open & he was physically/forcefully removed from his cell by [CO] GUNSETT & SORVINO, where he was then forced to walk through a Magnometer, watch said [COs] demolish his personal property, & submit a questionable urine sample (for which NO paperwork was properly filled out or completed by a tester). See, Exhibits 'A thru [sic] E.' Upon information & belief, said cell search was/is a form of retaliation and harassment orchestrated by [Green Haven CF's] Administration."
(Claim number 130711, ¶ 2). The claim states that the alleged malfeasance took place at Green Haven CF "in Claimant's previous housing location [A3-321]" and that defendant's agents "went well beyond the allotted time . . . for investigations, mandated by N.Y.S.D.O.C.C.S.' Directive #2733 (III) (A) (4)" (id., ¶ 3). The claim recites an accrual date of August 23, 2017 (see id., ¶ 4), and it states that it seeks "to recover damages for injury to or loss of personal property and it is served within 120 days of the exhaustion of claimant's administrative remedies" (id.). The claim seeks damages in the amount of $500. Attached to the claim are several documents, including claimant's administrative claim form dated April 7, 2017 that alleges facts similar to those alleged in the claim and seeks $333.20 in compensation for the destruction of a typewriter, two property bags, a shirt, a pair of glasses and five cassette cases (see id., Exhibit A [Inmate Claim Form]). According to the administrative claim form, claimant's administrative claim was disapproved on May 9, 2017, was appealed by claimant on May 15, 2017, and was disapproved on appeal on August 15, 2017 (see id.). Also attached to the claim is a grievance that alleges that at 5:15 a.m. on April 5, 2017, claimant was removed from his cell during morning prayer by CO Gunsett and another unknown CO and was forced to watch the COs ransack through and destroy his personal property (see id., Exhibit B [Scott Grievance dated 4/5/17]).
Although defendant's verified answer denominates only one affirmative defense, it actually asserts two affirmatives defenses. First, the answer asserts that the claim fails to comply with Court of Claims Act § 11 (b) because "it fails to state 'the items of damage or injuries claimed' " (Verified Answer, ¶ 2). The answer also asserts that the "[t]he claim of damages due to negligence, harassment, retaliation, prima facie and/or intentional tort, and breach of departmental policies or guidelines are untimely in that no notice of intention or claim was timely served or served and filed within 90 day [sic] as required by Court of Claims Act § 10 (3) and (3-a)" (id., ¶ 3).
"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]). "[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]). Importantly, the claimant "[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]).
Claimant argues that the affirmative defense that the claim is untimely should be dismissed because the claim was served on the Attorney General on December 14, 2017, which was within 120 days after his administrative remedies were exhausted on August 22, 2017 when he received the disapproval of his appeal. Claimant also argues that the claim contains sufficient specificity to permit defendant to investigate the claim and that the pleading therefore satisfies Court of Claims Act § 11 (b). As noted above, defendant did not file any papers on the motion. Claimant's motion will be granted in part.
The verified answer asserts that to the extent that the claim seeks "damages due to negligence, harassment, retaliation, prima facie and/or intentional tort, and breach of departmental policies or guidelines" (Verified Answer, ¶ 3), it is untimely because neither a notice of intention to file the claim nor the claim itself was served within 90 days of accrual as required by Court of Claims §§ 10 (3) and (3-a), both of which are applicable to unintentional torts. As noted above, the claim asserts that it accrued on August 23, 2017, and thus, any cause of action arising from allegedly tortious conduct within the meaning of Court of Claims §§ 10 (3) and (3-a) was required to have been served by November 21, 2017.(1) Although claimant has not filed an affidavit of service of the claim upon the Attorney General, the claim was not verified until November 30, 2017, and thus, it could not have been timely served. Accordingly, claimant has not demonstrated that the affirmative defense of untimeliness is without merit with respect to any cause of action sounding in negligence or unintentional torts, and thus, the motion to dismiss this affirmative defense will not be granted.
To the extent that claimant's motion seeks dismissal of the affirmative defense of untimeliness regarding his cause of action sounding in bailment, it will be denied. The verified answer does not raise the issue of timeliness of any bailment cause of action, and accordingly, any such objection has been waived (see Court of Claims Act §§ 11 [c] [I]). In the absence of such an affirmative defense, claimant's motion to dismiss it is unnecessary.
The answer further asserts that the claim fails to sufficiently state the items of damage or injuries claimed, and it is well-established that "[t]he Court of Claims Act does not require [defendant] to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d 201, 208 ). However, although the text of the claim itself does not state the items of personal property that were allegedly destroyed by defendant's agents, CPLR 3014 provides that all "any writing which is attached to the pleading is a part thereof for all purposes." Attached to the claim is claimant's administrative claim, which identifies the exact items alleged to have been destroyed, and thus, this defense is without merit as a matter of law (see Trojak v State of New York, UID No. 2014-018-530 [Ct Cl, Fitzpatrick, J., July 30, 2014] [facts contained within documents attached to the claim can satisfy Court of Claims Act § 11 (b) pleading requirements]).
Accordingly, it is
ORDERED, that claimant's motion number M-91768 is GRANTED IN PART, and to the extent that the verified answer asserts the affirmative defense that the claim does not satisfy the pleading requirements of Court of Claims Act § 11 (b) because it fails to itemize claimant's damages, that affirmative defense is DISMISSED, and it is further
ORDERED, that claimant's motion number M-91768 is DENIED in all other aspects.
May 25, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 130711, filed December 13, 2017;
(2) Verified Answer, filed January 9, 2018;
(3) Notice of Motion, dated January 18, 2018;
(4) Affidavit of Rashad Scott in Support of Motion to Strike Defendant's Sole Affirmative
Defense, sworn to January 19, 2018, with Exhibits H-I [sic];
(5) Affidavit of Service of Rashad Scott, sworn to January 19, 2018;
(6) Correspondence of Eileen F. Fazzone, Chief Clerk of the Court of Claims, dated February 6,
1. The Court views this claim as one for negligent bailment, and does not share defendant's view that this claim sounds in tort causes of action that are subject to Court of Claims §§ 10 (3) and (3-a). Nevertheless, and although claimant consistently refers to the claim as one seeking compensation for lost property, he does not deny that other causes of action sounding in tort may be stated (see Scott Affidavit, ¶ 12).