Defendant's motion to dismiss the amended claim granted for failure to state a cause of action for sexual harassment, religious discrimination, and defamation. Claimant's time to serve an amended claim as of right was extended by defendant's filing of the pre-answer motion to dismiss, and thus the amended claim was proper and superseded the initial claim as the subject of the motion to dismiss.
|Claimant short name:||DRAYTON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||OMNIPOTENT DRAYTON, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 1, 2019|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed and served this claim on October 31, 2018, in which he alleges various acts of harassment at Green Haven Correctional Facility (CF) in August 2018 (see Claim No. 132212). On December 4, 2018, defendant filed this pre-answer motion to dismiss the claim for failure to state a cause of action and for failure to comply with the pleading requirements in the Court of Claims Act and the CPLR (see Rubinstein Supplemental Affirmation in Support of Motion, Exhibit C [Rubinstein Affirmation in Support of Motion, dated Dec. 3, 2018, ¶¶ 3-8]). On January 8, 2019, claimant filed a "First Amended and Verified Claim," which included two additional paragraphs that appeared to be directed at several of the deficiencies alleged in the motion to dismiss (see First Amended and Verified Claim, ¶¶ 16A-16B), and an affidavit of service upon the Assistant Attorney General who made defendant's motion to dismiss. The amended claim was accepted by the Clerk of the Court of Claims for filing subject to any applicable legal objections (see Drayton v State of New York, UID No. 2019-038-519 [Ct Cl, DeBow, J., Apr. 5, 2019]). This Court issued a decision and order, filed on May 9, 2019, that (1) held defendant's motion to dismiss in abeyance, (2) granted defendant leave to file and serve an amended answer or make an application addressed to the amended claim, (3) granted claimant permission to file and serve a response to any filing made by defendant addressed to the amended claim, and (4) granted defendant permission to reply to any filing and service of a response by claimant (see id.).
On June 3, 2019, defendant filed a supplemental affirmation in further support of its motion to dismiss, arguing that the amended claim is a nullity because claimant failed to seek the Court's permission to amend his original claim (see CPLR 3025 [b]) and instead filed his amended claim "without leave of court" well more than twenty days after it was served (CPLR 3025 [a]; see Rubinstein Supplemental Affirmation in Support of Motion, ¶¶ 6, 15).(1) Defendant also argued that the amended claim must be dismissed because it does not state a cognizable claim and fails to state a cause of action against defendant. Claimant argues that his time to serve an amended pleading as of right was extended by defendant's filing of its pre-answer motion to dismiss (see Drayton Affidavit in Opposition to Motion to Dismiss, ¶¶ 3-5).
Court of Claims Rule (22 NYCRR) 206.7 (b) permits a party to serve an amended pleading "in the manner provided by CPLR 3025, except that a party may amend a pleading once without leave of court within 40 days after . . . service [of the original pleading], or at any time before the period for responding to it expires, or within 40 days after service of a pleading responding to it" (emphasis added). Service of a motion to dismiss pursuant to CPLR 3211 (a) "before service of a pleading responsive to the cause of action . . . sought to be dismissed extends the time to serve the pleading until ten days after service of notice of entry of the order" (CPLR 3211 [f]). Because a motion to dismiss pursuant to CPLR 3211 (a) "extend[s] the defendants' time to answer" pursuant to CPLR 3211 (f), it also "extend[s] the time in which the [claimant] could amend [its claim] as of right" (STS Mgt. Dev. v New York State Dept. of Taxation & Fin., 254 AD2d 409, 410 [2d Dept 1998]; see D'Amico v Correctional Med. Care, Inc., 120 AD3d 956, 957 [4th Dept 2014]; Johnson v Spence, 286 AD2d 481, 483 [2d Dept 2001]; John R. Higgitt, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3211:67, p. 119).
An amended complaint served as of right while a motion to dismiss is pending "supersede[s] the original complaint and [becomes] the operative pleading in th[e] action" (Delmaestro v Marlin, 168 AD3d 813, 815 [2d Dept 2019]; see Golia v Vieira, 162 AD3d 863, 864 [2d Dept 2018]). However, "[i]t has long been the rule in [the Second Department] that a motion to dismiss which is addressed to the merits may not be defeated by an amended pleading" (Livadiotakis v Tzitzikalakis, 302 AD2d 369, 370 [2d Dept 2003]; see Terrano v Fine, 17 AD3d 449, 449 [2d Dept 2005]; see also Higgitt, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3211:61, p. 111 ["No amendment as of right of the pleading that asserts the cause of action should be deemed to abate a motion to dismiss under CPLR 3211 (a)"]). "Where . . . a plaintiff serves an amended complaint as-of-right with opposition to a motion to dismiss, the defendant can elect to apply the motion to dismiss to the amended complaint" (Rodriguez v Dickard Widder Indus., 150 AD3d 1169, 1170 [2d Dept 2017]; see Sobel v Ansanelli, 98 AD3d 1020, 1022 [2d Dept 2012]).(2)
Based on the foregoing, defendant's timely pre-answer motion to dismiss extended claimant's time to amend his claim, and thus the amended claim, filed and served in response to the motion to dismiss, was timely pursuant to CPLR 3211 (f) and supersedes the original claim. Inasmuch as the amended claim has not substantively altered the causes of action pleaded in the original complaint - indeed, it appears the amended complaint sought only to provide additional factual information to address the jurisdictional deficiencies alleged in defendant's motion to dismiss - and defendant in its supplemental submission has explicitly addressed its pre-answer motion to dismiss to the amended claim (see Rubinstein Supplemental Affirmation in Support of Motion, ¶ 7), the Court will consider the motion addressed to the amended claim (see EDP Hosp. Computer Sys. v Bronx-Lebanon Hosp. Ctr., 212 AD2d 570, 571 [2d Dept 1995]).
The amended claim alleges that on four occasions in August 2018, claimant's Inmate Grievance Resolution Committee (IGRC) pass was defaced with sexually inappropriate and anti-Semitic drawings (see First Amended and Verified Complaint, ¶ 2). The amended claim alleges that on each occasion, claimant discovered the inappropriate drawings after obtaining his IGRC pass from "the 'A' man in B-Block" (id. at ¶ 4; see id. at ¶¶ 6, 10, 12). The amended claim alleges that claimant immediately reported each of the four incidents to the IGRC Supervisor, and he filed two grievances with respect to the incidents (see id. at ¶¶ 5, 7-9, 11, 13-16). The amended claim alleges that claimant's IGRC pass was defaced by "an officer working from the 7 AM to 3 PM shift on August 5th, 6th, 7th and 26th" (id. at ¶ 16A). The amended claim alleges two causes of action: first, that claimant was subjected to sexual harassment on August 6, 2018 and August 27, 2018, when his IGRC pass was defaced with sexually inappropriate drawings (see id. at ¶¶ 17-23, 30), and second, that claimant was subjected to "racial/religious" discrimination when his IGRC pass was defaced with anti-Semitic drawings (id. at ¶ 25; see id. at ¶¶ 24-29, 31). The claim also seeks damages for "employee harassment in the form of defamation of character" but does not allege a separate cause of action for defamation (First Amended and Verified Complaint, ¶ 32). The claim alleges that claimant suffered "defamation of character" as a result of the anti-Semitic drawings on his IGRC pass (id. at ¶ 26).
Defendant moves to dismiss the amended claim on the ground that it fails to state a cause of action because New York State does not recognize a common law cause of action for harassment and prohibits as a matter of public policy causes of action against the State for intentional infliction of emotional distress (see Rubinstein Supplemental Affirmation in Support of Motion, ¶¶ 7-9). Defendant further argues that the claim for negligent infliction of emotional distress must be dismissed as duplicative, and the defamation cause of action must be dismissed because the amended claim fails to plead with the required specificity the circumstances under which the alleged defamation occurred (see id. at ¶¶ 9-10). Defendant also argues that, despite claimant's assertions to the contrary, some of his allegations are consistent with a 42 USC § 1983 action and allege violations of the federal constitution and that this Court lacks jurisdiction over those claims (see id. at ¶ 11-13; see First Amended and Verified Claim, ¶ 16B). Finally, defendant argues that the amended claim is not sufficiently particularized because it fails to identify a particular State agent or employee who committed the alleged acts of harassment (see Rubinstein Supplemental Affirmation in Support of Motion, ¶ 14).
As an initial matter, Court of Claims Act § 11 (b) requires, 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." The pleading must set forth sufficient facts to satisfy each of the pleading requirements set forth in Court of Claims Act § 11 (b) (see Kolnacki v State of New York, 8 NY3d 277, 280-281 , rearg denied 8 NY3d 994 ), and the failure to do so is a fatal defect in subject matter jurisdiction that requires dismissal of the claim (see Lepkowski v State of New York, 1 NY3d 201, 209 ; see also Kolnacki, 8 NY3d at 281). While it has been stated that substantial compliance with this pleading requirement is sufficient (see Wharton v City Univ. of N.Y., 287 AD2d 559, 559-560 [2d Dept 2001]), and "absolute exactness is not required, the claim must provide a sufficiently detailed description of the particulars of the claim . . . [and] defendant is not required to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotation marks and citations omitted]). It is well settled that a jurisdictionally defective initial claim cannot be cured through service of an amended claim (see Hogan v State of New York, 59 AD3d 754, 755 [3d Dept 2009]; Roberts v State of New York, 4 Misc 3d 768, 774 [Ct Cl 2004]).
Here, claimant alleged in his initial claim that he picked up his IGRC pass from "the 'A' man in B-Block" on each day that the pass was defaced, and he alleged the time of day that he picked up the pass on each day (Claim No. 132212, ¶ 4; see id. at ¶¶ 6, 10, 12). In its initial motion to dismiss, defendant argued that the claim was insufficient because it failed to "connect the alleged wrongdoing with any state agent or employee" (Rubinstein Supplemental Affirmation in Support of Motion, Exhibit C [Rubinstein Affirmation in Support of Motion, ¶ 8]). Apparently in response to that argument, claimant alleged in the amended claim that "an officer working from the 7 AM to 3 PM shift on August 5th, 6th, 7th, and 26th, maliciously and intentionally defaced [claimant's] IGRC pass" (First Amended and Verified Claim, ¶ 16A). In its supplemental submission, defendant repeats the argument that the claim is not sufficiently particularized (see Rubinstein Supplemental Affirmation in Support of Motion, ¶ 14).
In the Court's view, the initial claim was sufficiently particularized. Although the initial claim did not identify the particular correction officer who allegedly defaced claimant's IGRC pass, the claim "nonetheless provided sufficient details to permit a prompt investigation into the incident" (Rhodes v State of New York, 245 AD2d 791, 792 [3d Dept 1997]; see Mattaway v State of New York, 61 Misc 3d 1210[A], 2018 NY Slip Op 51441[U], *3 [Ct Cl 2018] [noting that the Court could "find no authority for the proposition that the assailant and court officers must be named for claimant to sufficiently plead a claim"]) by alleging that "the 'A' man in B-Block" handed claimant his defaced IGRC pass at a specific time on each day that it was defaced. Accordingly, the initial claim was not jurisdictionally defective, and claimant need not have attempted to cure it with the amplified allegations in the amended claim.(3)
Turning to that part of defendant's motion that seeks dismissal because the claim fails to state a cause of action against defendant, to the extent the claim asserts that claimant was subjected to sexual harassment on August 6, 2018 and August 27, 2018 when a correction officer allegedly defaced claimant's IGRC pass with sexually inappropriate drawings, it is well settled that "New York does not recognize a common-law cause of action to recover damages for harassment" (Daulat v Helms Bros., Inc., 18 AD3d 802, 803 [2d Dept 2005]; see Adeniran v State of New York, 106 AD3d 844, 845 [2d Dept 2013]; Ralin v City of New York, 44 AD3d 838, 839 [2d Dept 2007]; Purdie v State of New York, UID No. 2017-038-571 [Ct Cl, DeBow, J., Oct. 4, 2017]; Johnson v State of New York, UID No. 2016-038-549 [Ct Cl, DeBow, J., July 28, 2016]). Defendant is entitled, therefore, to dismissal of this cause of action.
Turning to claimant's religious discrimination claim, the Court of Appeals has concluded that although prison inmates "must endure substantial limitations on many rights and privileges [they] previously enjoyed, . . . it is clear that . . . prisoner[s] maintain the right to free exercise of religion under the first amendment of the Federal Constitution" (Matter of Rivera v Smith, 63 NY2d 501, 510 ). Moreover, the "free exercise right" guaranteed under the New York State Constitution (see NY Const, art I, § 3) "has expressly been extended to those incarcerated in New York correctional facilities by [Correction Law § 610]" (id.). Nevertheless, it is well settled that a cause of action sounding in state constitutional tort is a "narrow remedy" (Brown v State of New York, 89 NY2d 172, 192 ) that may be pursued only where it is "necessary to effectuate the purposes of the State constitutional protections [claimant] invokes" and "appropriate to ensure the full realization of [claimant's] rights" (Martinez v City of Schenectady, 97 NY2d 78, 83 ; see Brown, 89 NY2d at 186-188), and it is not available when another remedy is available to enforce the claimed constitutional right (see Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Bullard v State of New York, 307 AD2d 676, 679 [3d Dept 2003]).
As relevant here, pursuant to Correction Law § 610, inmates alleging religious discrimination "may institute proceedings in the supreme court of the district where such institution is situated, which is hereby authorized and empowered to enforce the provisions of this section" (Correction Law § 610 ). Thus, claimant had available to him the alternative remedy of filing a proceeding in Supreme Court to enforce his right to free exercise of religion, as well as the additional remedy of filing a constitutional claim in federal court (see Alsaifullah v State of New York, 166 AD3d 1426, 1427 [3d Dept 2018]), thus foreclosing the availability of a state constitutional tort claim (see Rodriguez v State of New York, UID No. 2013-038-555 [Ct Cl, DeBow, J., Sept. 17, 2013]).(4) Claimant also had available to him the remedy of filing a CPLR article 78 petition challenging the denial of the two grievances he filed with respect to his allegations of harassment and discrimination (see e.g. Matter of Keesh v Smith, 59 AD3d 798 [3d Dept 2009]; see also First Amended and Verified Claim, ¶¶ 8, 13-16; Rubinstein Supplemental Affirmation in Support of Motion, Exhibit C [Grievance No. 90301-18 & Grievance No. 90047-18]). Because claimant has multiple alternative avenues to obtain legal remedies for the alleged religious discrimination, his religious discrimination claim must be dismissed (see Alsaifullah, 166 AD3d at 1426-1427; Franza v State of New York, 164 AD3d 971, 973 [3d Dept 2018], lv denied 32 NY3d 910 ).
Respecting any claim of intentional infliction of emotional distress claimant allegedly experienced as a result of the alleged harassment and discrimination (see First Amended and Verified Claim, ¶¶ 22, 26), such a claim is barred by the State of New York as a matter of public policy (see Wheeler v State of New York, 104 AD2d 496, 498 [2d Dept 1984]; Purdie v State of New York, UID No. 2017-038-571 [Ct Cl, DeBow, J., Oct. 4, 2017]). To the extent the amended claim can be read to assert a cause of action for negligent infliction of emotional distress, "such a cause of action must generally be premised upon conduct that unreasonably endangers the plaintiff's physical safety" (Losquadro v Winthrop Univ. Hosp., 216 AD2d 533, 534 [2d Dept 1995]), and it has been recognized only in narrowly circumscribed circumstances not present here (see e.g. Ornstein v New York City Health & Hosps. Corp., 10 NY3d 1, 6  [exposure to HIV virus]; Broadnax v Gonzalez, 2 NY3d 148, 155  [miscarriage or stillbirth as a result of medical malpractice]; Martinez v Long Is. Jewish Hillside Med. Ctr., 70 NY2d 697, 698-699  [unnecessarily obtaining abortion based on erroneous medical advice]).
Finally, to the extent that the claim asserts a cause of action for defamation it must be dismissed for failure to state a cause of action because claimant has failed to allege that defendant published a false statement to a third party (see Arvanitakis v Lester, 145 AD3d 650, 651 [2d Dept 2016] [claim must "specify" to whom (the allegedly defamatory statement) was made"]), or that the publication of the false statement constituted special harm (see Gaccione v Scarpinato, 137 AD3d 857, 859 [2d Dept 2016] ["special harm" is "the loss of something having economic or pecuniary value, as a result of those statements"]) or defamation per se (see Matter of Konig v Wordpress.com, 112 AD3d 936, 937 [2d Dept 2013] ["(a) false statement constitutes defamation per se when it charges another with a serious crime or tends to injure another in his or her trade, business, or profession"] [internal quotation marks omitted]).
In sum, the claim fails to state a cause of action against defendant and must be dismissed. Accordingly, it is
ORDERED, that defendant's motion number M-93246 is GRANTED, and claim number 132212 is hereby DISMISSED.
August 1, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 132212, filed October 31, 2018;
2. Affidavit of Service of Claim No. 132212, sworn to October 26, 2018;
3. First Amended and Verified Claim, filed January 8, 2019;
4. Affidavit of Service of First Amended and Verified Claim, sworn to January 4, 2019;
5. Notice of Motion, dated December 3, 2018;
6. Rubinstein Affirmation in Support of Motion, dated December 3, 2018, with Exhibit A;
7. Affidavit of Service of Francine Broughton, sworn to November [sic] 4, 2018;
8. Rubinstein Supplemental Affirmation in Support of Motion, dated May 21, 2019, with Exhibits A-D;
9. Affidavit of Service of Francine Broughton, sworn to May 28, 2019;
10. Affidavit of Francine Broughton [service of First Amended and Verified Claim], sworn to May 28, 2019;
11. Affidavit in Opposition to Motion to Dismiss, filed June 27, 2019;
12. Decision and Order, filed May 9, 2019 (UID No. 2019-038-519 [Ct Cl, DeBow, J., Apr. 5, 2019]).
1. Defendant also notes that the amended claim was served by regular mail (see Rubinstein Supplemental Affirmation at ¶ 15; id., Exhibit D [Affidavit of Francine Broughton, sworn to May 28, 2019]) but does not explicitly seek dismissal on that basis. The Court of Claims Act is silent as to the manner of service of amended pleadings and, thus, the CPLR governs (see Rohany v State of New York, 144 Misc 2d 940, 942 [Ct Cl 1989]). The service of amended claims is governed by CPLR 2103 (b) (2), which provides that "papers to be served upon a party in a pending action shall be served upon the party's attorney" and that when such papers are mailed to an attorney, it shall be done by regular mail (see Rohany, 144 Misc 2d at 943). Accordingly, judges of this Court have regularly directed that amended claims be served by regular mail (see e.g. Volz v State of New York, UID No. 2017-041-007 [Ct Cl, Milano, J., Feb. 21, 2017]; Bartlett v State of New York, UID No. 2014-048-146 [Ct Cl, Bruening, J., June 9, 2014]) and, here, claimant's service of the amended claim by regular mail is not a basis for dismissal (see Alexander v State of New York, UID 2015-051-039 [Ct Cl, Martin, J., Dec. 17, 2015]).
2. The First Department likewise has held that an amended pleading does not "automatically abate a motion to dismiss that was addressed to the original pleading" and that "the moving party has the option to decide whether its motion should be applied to the new pleadings" (Sage Realty Corp. v Proskauer Rose, 251 AD2d 35, 38 [1st Dept 1998]; see Ferguson v Sherman Sq. Realty Corp., 30 AD3d 288, 288 [1st Dept 2006] DiPasqualie v Security Mut. Life Ins. Co. of N.Y., 293 AD2d 394, 395 [1st Dept 2002]); but see Fownes Bros. & Co., Inc. v JPMorgan Chase & Co., 92 AD3d 582, 582 [1st Dept 2012] [trial court "properly directed (defendants') motions (to dismiss) toward the original complaint" where plaintiffs had filed and served the amended complaint "two business days before the court issued its order"]). The Fourth Department has also deemed a motion to dismiss to be directed against a properly filed and served amended complaint (see D'Amico, 120 AD3d at 957). The Third Department, however, which has not addressed this issue in recent years, has previously held that because service of an amended complaint supersedes the original complaint, a "motion to dismiss [the original] complaint for insufficiency [is] abated" by service of the amended complaint (Novick v Davidson, 262 AD 1058, 1059 [3d Dept 1941], rearg denied 263 AD 764 [3d Dept 1941], appeal dismissed 287 NY 680 , order amended by 266 AD 813 [3d Dept 1943]).
3. Inasmuch as the original claim was not jurisdictionally defective, the amendment was not curative, and therefore proper (cf. Hogan, 59 AD3d at 755 [jurisdictionally defective claim cannot be cured through amendment]).
4. The amended claim alleges, apparently in response to the initial motion to dismiss, that it does not "assert any federal claims under 42 USC § 1983 or any other federal statute" (First Amended and Verified Claim, ¶ 16B). Nevertheless, defendant maintains that "some of [the] allegations fall within the purview of a [42 USC §] 1983 action far more than [they do] a claim" (Rubinstein Supplemental Affirmation in Support of Motion, ¶ 11). Even if the claim were to assert a 42 USC § 1983 claim, it is well settled that "the state is not a 'person' in that regard and the Court of Claims lacks jurisdiction over such claims" (Blake v State of New York, 145 AD3d 1336, 1337 [3d Dept 2016], lv denied 29 NY3d 908 ; see Oppenheimer v State of New York, 152 AD3d 1006, 1008 [3d Dept 2017]; Flemming v State of New York, 120 AD3d 848, 849 [3d Dept 2014]).