Claimant's motion to strike affirmative defenses denied. Claimant failed to demonstrate that the defenses lacked merit as a matter of law. Defendant's motion to dismiss claim for lack of subject matter jurisdiction granted in part and denied in part. The Greene County District Attorney is not a State officer and the claim against it cannot be brought in the Court of Claims. The Greene County Clerk was acting as a State officer because it was serving in its capacity as the clerk of the Green County Court when it allegedly failed to amend a felony indictment improperly naming claimant as the defendant.
|Claimant(s):||JAMES C. PINE|
|Claimant short name:||PINE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-94385, M-94386|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||JAMES C. PINE, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Christina Calabrese, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 6, 2019|
|See also (multicaptioned case)|
Claimant pro se filed this claim seeking compensation for injuries suffered due to the alleged negligence of the Greene County District Attorney and the Greene County Clerk in failing to amend a felony indictment that erroneously named claimant as the defendant. Claimant now moves to dismiss all but one of the twenty-seven affirmative defenses raised in defendant's answer. Defendant opposes claimant's motion to strike the affirmative defenses and has filed a motion seeking to dismiss the claim on the ground that the Court lacks subject matter jurisdiction over the claim because it asserts claims against Greene County officials. Claimant has not opposed defendant's motion to dismiss the claim.
The claim alleges that in late 2018, claimant found himself "unable to gain lucrative employment when [a] prospective employer conducted a back ground check and found a [f]elony [i]ndictment levied against [claimant] James C. Pine" (Claim No. 132813, ¶ 5). The claim alleges that claimant obtained a copy of the indictment, which included charges for manslaughter in the first degree and assault in the first degree, and learned that he had been improperly named as the defendant in the criminal case against his son, James R. Pine (see id. at ¶¶ 6-7, 11). The claim alleges that the Greene County District Attorney was ordered by the trial judge to amend the indictment to reflect the proper defendant but that "the District Attorney, and/or the Greene County Clerk failed to take action, as a matter of law, to competently perform their duties, and instead, filed a wrongful Indictment against . . . [c]laimant" (id. at ¶ 9).(1) The claim alleges that as a result of the failure of the Greene County District Attorney and the Greene County Clerk to amend the indictment, he has suffered numerous injuries, including the stigma of having a criminal record and the inability to obtain "any 'decent' job," and demands damages in the amount of $160,000 (id. at ¶¶ 11, 12).
Defendant's motion will be considered first, as it implicates the Court's jurisdiction to entertain the claim. Defendant argues that this claim must be dismissed for lack of subject matter jurisdiction because the subject matter jurisdiction of the Court of Claims is limited to claims against the State, and here, the claim is asserted against county officials (see Calabrese Affirmation [M-94386], ¶¶ 8-14). As noted above, claimant has not opposed the motion.
"The Court of Claims is a court of limited jurisdiction and possesses only such jurisdiction as the Legislature expressly confers upon it" (Ivey v State of New York, 138 AD2d 962, 962 [4th Dept 1988]; see Allen v State of New York, 14 Misc 3d 1228[A], 2007 NY Slip Op 50202[U], *2 [Ct Cl 2007]). As relevant here, its subject matter jurisdiction is limited to claims "against the state . . . for the torts of its officers or employees while acting as such officers or employees" (Court of Claims Act § 9  [emphasis added]; see Borawski v Abulafia, 117 AD3d 662, 663 [2d Dept 2014] ["The Court of Claims has limited jurisdiction to hear actions against the State itself, or actions naming State agencies or officials as defendants, where the action is, in reality, one against the State"] [internal quotation marks omitted]). Where "the defendant is neither a State actor nor one of the State-related entities that may be sued in the Court of Claims, . . . dismissal of the claim for lack of subject matter jurisdiction" is mandated (Bush v Stevenson Commons Assoc., LLP, Esqs., 156 AD3d 752, 753 [2d Dept 2017], lv dismissed 32 NY3d 1034 , rearg denied 32 NY3d 1089 ).
It is well settled that District Attorneys "are not State officers but officers of the County in which they serve" (Morris v City of New York, 198 AD2d 35, 36 [1st Dept 1993]; see Matter of Caputo v Halpin, 78 NY2d 117, 127 ; Fisher v State of New York, 10 NY2d 60, 61 ; Fuller v State of New York, 11 AD3d 365, 366 [1st Dept 2004]; Whitmore v State of New York, 55 AD2d 745, 746 [3d Dept 1976], lv denied 42 NY2d 810 ; Corcoran v State of New York, 30 AD2d 991, 992 [3d Dept 1968], affd 24 NY2d 922 ), and claims against them are not properly in the Court of Claims (see Murph v State of New York, 105 Misc 2d 684, 685 [Ct Cl 1980]; Krisher v Hogan, 23 Misc 2d 110, 110 [Ct Cl 1960]). Thus, the claim insofar as it is asserted against the Greene County District Attorney must be dismissed.
On the other hand, the Court of Appeals has declared that
"County Clerk[s] serve both the State and local governments (Olmstead v Meahl, 219 NY 270). As a clerk of the courts, the County Clerk is a State officer for whom the State is responsible. But when performing general duties the County Clerk acts as a local officer, and the local government must answer for actions taken"
(National Westminster Bank, USA v State of New York, 76 NY2d 507, 509 ). Thus, "[t]he question as to whether the Clerk should be considered a State or local officer in a suit challenging [the Clerk's] conduct depends upon the nature of the act which is the subject of suit" (id.). A County Clerk acts as a State officer over whom the Court of Claims has subject matter jurisdiction only insofar as the Clerk "performs acts that are in themselves a part of the judicial system" (id. [internal quotation marks omitted]).
Courts have held, for example, that a County Clerk acts as a State officer with respect to the docketing and expungement of judgments (see National Westminster Bank, USA v State of New York, 155 AD2d 261, 261 [1st Dept 1989], lv granted 75 NY2d 706 , affd 76 NY2d 507 ; Haskins v State of New York, 145 AD2d 915, 915 [4th Dept 1988]), the recording of a lis pendens (see Ashland Equities Co. v Clerk of New York County, 110 AD2d 60, 61 [1st Dept 1985]), and the decision whether to return a claimant's filing fee (see Berrian v State of New York, UID No. 2006-015-114 [Ct Cl, Collins, J., Aug. 22, 2006]). Other actions, such as docketing mechanic's liens or keeping records of gun permits are "not sufficiently related to court functions" to render a County Clerk a State officer subject to the jurisdiction of the Court of Claims (J. Ellrott Excavating Contrs. v State of New York, 247 AD2d 705, 706 [3d Dept 1998]; see Colon v City of Rochester, et al., UID No. 2003-013-014 [Ct Cl, Patti, J., July 31, 2003]).
Here, the crux of the claim is that the indictment against claimant's son erroneously named claimant as the defendant by including the wrong middle initial and that the Greene County Clerk failed to carry out an order of the Greene County Court that the felony indictment be amended to reflect the proper defendant. In the Court's view, the inaction by the Greene County Clerk as alleged in the claim is sufficiently related to the County Clerk's function as the Clerk of the Greene County Court, and thus an inherent part of the judicial process, and defendant's motion to dismiss as against the Greene County Clerk will be denied.
Turning to claimant's motion to strike the answer, as noted above, claimant seeks dismissal of all but one of the affirmative defense asserted in defendant's answer.(2) "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, 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, 923 [4th Dept 1988]; see Suarez v State of New York, 60 AD3d 1243, 1243 [3d Dept 2009]). Importantly, 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]).
As an initial matter, defendant argues that claimant's motion to strike the answer may be denied because the motion is unsupported by a copy of the claim or the answer (see Calabrese Affirmation [M-94385], ¶ 4). However, the Court has previously noted that CPLR 3211 (b) does not require that a motion to strike affirmative defenses be supported by a copy of the pleadings and has declined to dismiss a motion to strike the answer on that basis (see Adams v State of New York, UID No. 2015-038-570 [Ct Cl, DeBow, J., Oct. 28, 2015]), and the precedent cited by defendant holds merely that a claimant's failure to support a motion to strike the answer with copies of the pleadings may be a basis for dismissal where the failure to do so resulted in claimant's failure to make a conclusive showing that the defenses sought to be dismissed lacked merit (see Scott v State of New York, UID No. 2019-053-502 [Ct Cl, Sampson, J., Jan. 10, 2019], citing Scott v State of New York, UID No. 2016-041-039 [Ct Cl, Milano, J., June 23, 2016]). Accordingly, the Court will address claimant's motion on the merits.
First through Twelfth Affirmative Defenses
The First through Twelfth affirmative defenses allege that the Court lacks subject matter jurisdiction over the claim because the notice of intention failed to comply with the verification and pleading requirements set forth in Court of Claims Act § 11, and the notice of intention and/or claim failed to comply with the timeliness requirements set forth in Court of Claims Act §§ 10 and 11 (see Verified Answer, ¶¶ 2-13). In support of his motion, claimant argues that these defenses "are nothing more than a serpentine twist as to whether the Claimant properly and timely filed a Notice of Intention" and that the claim was timely because "[c]laimant explicitly brought the instant action under the 'Nature of Continuing Harm Doctrine' " (Verified Reply in Answer Defendant's Verified Answer and Demand for Bill of Particulars [hereinafter Verified Reply], ¶ 9). Defendant argues in response that it is unable to determine the timeliness of the claim because claimant has failed to allege a date of accrual and asserts that the harm is ongoing, and therefore its defenses related to timeliness are meritorious (see Calabrese Affirmation [M-94385], ¶ 6). As an initial matter, claimant has failed to append a copy of the notice of intention he served on defendant, and thus the Court cannot determine whether the First through Sixth affirmative defenses lack merit. Moreover, with regard to the Seventh through Twelfth affirmative defenses, claimant offers no evidence to support his argument that the claim is timely, nor does he make any legal argument expanding upon his assertion that the claim was timely because it asserted a continuing harm. Claimant therefore has failed to establish that these defenses lack merit as a matter of law.
Thirteenth through Seventeenth Affirmative Defenses
The Thirteenth through Seventeenth affirmative defenses allege that the Court lacks subject matter jurisdiction over the claim and personal jurisdiction over defendant because the claim failed to comply with the pleading requirements set forth in Court of Claims Act § 11 and 22 NYCRR 206.6 (b) (see Verified Answer, ¶¶ 14-18). In support of his motion, claimant argues that "a simple review of Claimant's original moving papers clearly illumine [sic] the Defendant's Defenses as frivolous" (Verified Reply, ¶ 10). Defendant argues in response that the Court may lack subject matter jurisdiction over the claim inasmuch as neither the Greene County District Attorney nor the Greene County Clerk is a "state actor" and, in any event, claimant has failed to address the merits of the defenses in his motion (Calabrese Affirmation [M-94385], ¶ 7). The Court agrees that claimant's bare assertion with respect to these defenses, which is not supported by any detailed argument addressed to the sufficiency of the pleading, does not sustain his burden of demonstrating that the defenses lack merit as a matter of law.
Nineteenth Affirmative Defense
The Nineteenth affirmative defense alleges that the "Court lacks jurisdiction to consider the Claim because the exclusive remedy available to the claimant in this matter is a special proceeding pursuant to CPLR Article 78" (Verified Answer, ¶ 20). In support of his motion, claimant argues that defendant "mistak[enly] alleges [a CPLR article 78 proceeding] is the 'proper Remedy', in spite of common knowledge that damages awards are not recoverable" through such a proceeding (Verified Reply, ¶ 11). Defendant argues that a CPLR article 78 proceeding is available here because the claim appears to challenge the actions of the Greene County Clerk's Office (see Calabrese Affirmation [M-94385], ¶ 8).
The subject matter jurisdiction of the Court of Claims "is limited to actions seeking money damages against the State in appropriation, contract or tort cases" (Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [3d Dept 1997], citing Court of Claims Act § 9 ). To determine whether a claim falls within the limited jurisdiction of the Court of Claims, the Court must make two inquiries:
"Initially, the threshold question in determining the subject matter jurisdiction of the Court of Claims is whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim. The second inquiry, regardless of how a claimant categorizes a claim, is whether the claim would require review of an administrative agency's determination - which the Court of Claims has no subject matter jurisdiction to entertain"
(Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d 1142, 1143-1144 [3d Dept 2009] [internal quotation marks, substitution, and citations omitted], lv denied 12 NY3d 712 ).
As discussed above, the gravamen of this claim is that the Greene County Clerk failed to comply with a court order directing the Clerk to amend the felony indictment against claimant's son, and claimant has offered no facts or evidence to demonstrate that the adjudication of this claim will not require a review of the Greene County Clerk's alleged failure to amend the felony indictment at issue here. Accordingly, claimant has failed to demonstrate that this defense lacks merit as a matter of law.
Twentieth through Twenty-Fifth Affirmative Defenses
The Twentieth through Twenty-Fifth affirmative defenses allege that defendant is entitled to immunity from liability for the actions alleged in the claim or that the actions taken were privileged (see Verified Answer, ¶¶ 21-25). In support of his motion, claimant argues solely that these defenses lack merit and must be dismissed because defendant cannot claim immunity for failing to perform a required ministerial duty (see Verified Reply, ¶ 12) and that defendant "is frivolously trying to excuse their agent . . . for failing to competently perform their ministerial duties" (id. at ¶ 13). Defendant argues in response that claimant's motion should be denied with respect to these defenses because "any actions of a county court judge, Office of Court Administration or District Attorney's Office, as alleged in the claim, would be subject to immunity" (Calabrese Affirmation [M-94385], ¶ 9). Claimant has failed to establish that the County Clerk had a ministerial duty to amend the felony indictment inasmuch as he did not append to his motion papers a copy of the court order that allegedly directed such action. Thus, claimant has failed to demonstrate that these defenses lack merit.
Twenty-Sixth Affirmative Defense
This defense alleges that the negligence of others contributed to cause claimant's injuries. In support of his motion, claimant argues that defendant "is merely trying to shift blame to some other entity rather than admit their wrongdoing and harming the [c]laimant" (Verified Reply, ¶ 14). Defendant argues that "claimant has failed to provide any reason why such defense lacks merit" (Calabrese Affirmation [M-94385], ¶ 10). Aside from claimant's bare assertions with respect to defendant's motive for invoking this defense, he offers no arguments addressed to its merits, and it will not be stricken.
Twenty-Seventh Affirmative Defense
The Twenty-Seventh affirmative defense alleges that the claim fails to state a cause of action upon which relief may be granted (see Verified Answer, ¶ 28). In support of his motion, claimant argues that this affirmative defense "falsely alludes that there are no viable causes of action" even though the claim "clearly explains 13 different causes of action and are incorporated in the legal theory presented in the original moving papers" (Verified Reply, ¶ 15). As defendant correctly argues in opposition (see Calabrese Affirmation [M-94385], ¶ 11), it is well settled that this defense 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]).
Accordingly, it is
ORDERED, that claimant's motion number M-94385 is DENIED; and it is further
ORDERED, that defendant's motion number M-94386 is GRANTED IN PART, to the extent that the claim is DISMISSED against the Greene County District Attorney; and it is further
ORDERED, that defendant's motion number M-94386 is DENIED in all other respects.
September 6, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim number 132813, filed March 21, 2019;
2. Verified Answer, filed May 10, 2019;
3. Notice of Motion for Reply to Defendant's Verified Answer-and-Demand for Bill of Particulars, sworn to July 21, 2019 (M-94385);
4. Verified Reply in Answer Defendant's Verified Answer and Demand for Bill of Particulars, sworn to July 21, 2019 (M-94385);
5. Notice of Motion (M-94386), dated August 2, 2019;
6. Affirmation of Christina Calabrese, AAG, (M-94386) dated August 2, 2019, with Exhibits A-B;
7. Affidavit of Service of Tara K. Matthews, sworn to August 6, 2019;
8. Affirmation of Christina Calabrese, AAG, (M-94385) dated August 26, 2019.
1. The minutes from the February 2, 2007 arraignment in Greene County Court, which are attached to the claim as Exhibit A, reveal that the District Attorney made a motion "to amend [the] caption to read 'James R. Pine' instead of 'James C. Pine' " and that the motion was granted (see Claim No. 132813, Exhibit A).
2. To the extent claimant seeks to strike certain denials asserted in the answer (see Verified Reply in Answer Defendant's Verified Answer and Demand for Bill of Particulars, ¶ 9 [seeking to dismiss paragraphs 1 through 13 of the Verified Answer]; Verified Answer, ¶ 1 ["Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in all paragraphs of the numbered claim"]), such relief will not be granted inasmuch as a motion to dismiss affirmative defenses "cannot be used to strike general denials" of the allegations in the complaint (City of Rochester v Chiarella, 65 NY2d 92, 101 ; see CPLR 3211 [b]; CPLR 3018).