New York State Court of Claims

New York State Court of Claims
CALVENTE v. THE STATE OF NEW YORK, # 2019-015-209, Claim No. 131259, Motion No. M-94811


Claim was dismissed for failure to state a cause of action.

Case information

UID: 2019-015-209
Claimant(s): JOSE CALVENTE [14-A-5049]
Claimant short name: CALVENTE
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 131259
Motion number(s): M-94811
Cross-motion number(s):
Claimant's attorney: No Appearance
Defendant's attorney: Honorable Letitia James, Attorney General
By: Douglas R. Kemp, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 27, 2019
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Defendant moves to dismiss the instant claim pursuant to CPLR 3211 (a) (2) and (7) on the grounds it fails to state a cause of action or to meet the pleading requirements of Court of Claims Act 11 (b).

Claimant, a former inmate of the Department of Corrections and Community Supervision (DOCCS), alleges he injured his right shoulder while performing his assigned work in the recycling unit of Wallkill Correctional Facility on October 11, 2017. Claimant alleges that in assigning him to work in the recycling unit, DOCCS failed to consider his age and health as required by the facility's operations manual.

On a motion to dismiss a claim pursuant to CPLR 3211 (a) (7) the court is required to

"accept the 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]; Connolly v Long Is. Power Auth., 30 NY3d 719, 728 [2018]; Graven v Children's Home R.T.F., Inc., 152 AD3d 1152, 1153 [3d Dept 2017]; Graves v Stanclift, Ludemann, McMorris & Silvestri, P.C., 174 AD3d 1086 [3d Dept 2019]). "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). Notwithstanding the favorable treatment of such pleadings, however, "bare legal conclusions with no factual specificity do not suffice to withstand a motion to dismiss" (Mid-Hudson Val. Fed. Credit Union v Quartararo & Lois, PLLC, 155 AD3d 1218, 1219 [3d Dept 2017]), affd 31 NY3d 1090 [2018]). Rather, the test to be applied is whether the pleading alleges facts "sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense" (CPLR 3013; see also Blake v State of New York, 157 AD3d 1019, 1020 [3d Dept 2018], lv denied 31 NY3d 905 [2018]; Dolphin Holdings, Ltd. v Gander & White Shipping, Inc., 122 AD3d 901, 902 [2d Dept 2014]). Dismissal of a claim is warranted where insufficient facts are alleged to support an element of the claim "or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [2017]; see also Mid-Hudson Val. Fed. Credit Union, 155 AD3d at 1219).

Here, accepting the facts alleged in the claim as true, and according the claimant the benefit of every possible favorable inference, the facts alleged in the claim fail to state a cognizable cause of action.(1) Claimant does not allege the precise manner in which the incident occurred or otherwise attribute his injury to any malfunctioning equipment or defect on the premises. Rather, the gist of the claim is that DOCCS subjected him to an unreasonable risk of harm by assigning him work which was inappropriate for his age and health condition. The law is settled that an inmate has no right to a particular job assignment (Matter of Rodriguez v Central Off. Review Comm., 153 AD3d 1545, 1546 [3d Dept 2017]; Matter of Kairis v Fischer, 149 AD3d 1427, 1429 [3d Dept 2017]; Blake v State of New York, 145 AD3d 1336, 1337 [3d Dept 2016], lv denied 29 NY3d 908 [2017]; Evans v State of New York, 57 AD3d 1123, 1123-1124 [3d Dept 2008], lv denied 12 NY3d 704 [2009]). Rather, inmate work and program assignments are discretionary determinations (Matter of Rodriguez, 153 AD3d at 1546; see also Valdez v City of New York, 18 NY3d 69 [2011]). To the extent claimant argues that certain non-discretionary protocols were violated in selecting his work assignment, his recourse was to file a grievance and, if necessary, seek review of the determination in Supreme Court pursuant to CPLR article 78 (see Blake v State of New York, supra). This Court lacks jurisdiction to review such determinations (see Jones v State of New York, 171 AD3d 1362, 1364 [3D Dept 2019], appeal dismissed 33 NY3d 1056 [2019]; Pratow Corp. v State of New York, 148 AD3d 1065 [2d Dept 2017]; Polanco v State of New York, 130 AD3d 1494 [4th Dept 2015]).

Based on the foregoing, defendant's motion is granted and the claim is dismissed, without opposition.

December 27, 2019

Saratoga Springs, New York


Judge of the Court of Claims

Papers Considered:

  1. Notice of motion dated October 25, 2019;
  2. Affirmation in support dated October 25, 2019, with Exhibits A and B.

1. This determination renders consideration of defendant's alternative ground for dismissal- that the claim fails to meet the jurisdictional pleading requirements of Court of Claims Act 11 (b)- unnecessary.