Defendant's pre-Answer Motion to Dismiss the Claim, Amended Claim, and Second Amended Claim granted.
|Claimant short name:||MIROIU|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-93869, M-93870, M-93871|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Alexandru Miroiu, Pro Se|
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Michael T. Krenrich, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||August 21, 2019|
|See also (multicaptioned case)|
For the reasons set forth below, Defendant's pre-Answer Motions to dismiss the Claim (M-93870), the Amended Claim (M-93871), and the Second Amended Claim (M-93869) pursuant to CPLR 3211(a)(7), and, in addition, the Second Amended Claim pursuant to Court of Claims Act § 11(b) and CPLR § 3013, are granted and the Claim, Amended Claim, and Second Amended Claim are dismissed. The remainders of the Motions are denied as Moot.
This pro se Claim, which was filed in the Office of the Clerk of the Court on December 24, 2018, alleges that a verbal contract exists between Mid-Lakes Assertive Community Treatment Team of Watkins Glen and Claimant, which, essentially, prohibits mental health practitioners from engaging patients and former patients in public. Claimant alleges that, on October 23, 2018, New York State Office of Mental Health (hereinafter, "OMH") employee Heather Cox breached that contract when she greeted Claimant in front of the Tompkins County Public Library. Claimant further alleges that, on July 11, 2018, he received an email from OMH employee Camille Waldron inviting him to join "LinkedIn." The Claim describes at length the damages Claimant allegedly sustained from these two interactions.
Defendant moves to dismiss the Claim on the following grounds: (1) The Claim fails to satisfy the pleading requirements under Court of Claims Act § 11(b) and CPLR § 3013; (2) there was no valid contract between Claimant and Defendant; (3) the Claim fails to state a valid cause of action for negligence; and (4) any negligence cause of action accruing prior to September 25, 2018 is untimely.
The Court will begin with Defendant's second argument - that there was no valid contract between Claimant and Defendant.
"The requirements for the formation of a contract are that at least two parties with legal capacity to contract, mutually assent to the terms of the contract, and that there is consideration (see Restatement [Second] Contracts §§ 9, 12, 17; 1 Lord, Williston on Contracts § 3:2, at 200-209 [4th ed]; 22 NY Jur 2d, Contracts §§ 11, 13)" (Comm'rs of State Ins. Fund v Branicki, 2 Misc. 3d 972, 975 [Civ Ct, Kings County, 2004]).
On a motion to dismiss a claim pursuant to CPLR 3211(a)(7), the court must "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 ; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 ; Dee v Rakower, 112 AD3d 204, 208 [2d Dept 2013]). Thus, the determination is made by reference to whether "the proponent of the pleading has a cause of action, not whether he has stated one" (Leon v Martinez, supra at 88 [quotation marks and citations omitted]).
General Obligations Law § 5-701 (hereinafter, the "Statute of Frauds") provides, in pertinent part:
a. Every agreement, promise or undertaking is void, unless it or some memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking:
1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime …
Here, the Claim specifically asserts that the contract was an oral contract, which required all Mid-Lakes Assertive Community Treatment Team mental health professionals not to engage with present or former patients in public (Claim, ¶ 2). Claimant asserts that the mental health professionals cannot engage with present or former patients. However, he does not assert that a one-year time limit was placed upon such engagement.
In order to remove an agreement from the application of the Statute of Frauds, both parties must be able to complete their performance of the contract within one year (Sheehy v Clifford Chance Rogers & Wells, LLP, 3 NY3d 554, 560 ).
Further, in Doe v Roe (210 AD2d 932, 933 [4th Dept 1994]), the Appellate Division, Fourth Department held that "[t]he promise of a physician to maintain the confidentiality of a patient's HIV status extends indefinitely beyond the time that treatment is provided and continues until it is waived by the patient. Because the physician cannot waive the privilege, the promise is one that cannot be performed within a lifetime."
Here, the situation is similar to that in Doe (supra). The alleged promise not to engage Claimant (or any other mental health patient) in public extends indefinitely beyond the time treatment was provided. Therefore, the promise is one that cannot be performed in a lifetime and the Statute of Frauds is an affirmative defense to the breach of the oral promise alleged in the Claim. Thus, based upon the foregoing, the cause of action asserting breach of an oral contract is dismissed.
Defendant also seeks to dismiss that portion of the Claim that could be interpreted as alleging a negligence cause of action. The Court has read the Claim and does not see a negligence cause of action asserted. However, assuming that a cause of action alleging negligent infliction of emotional distress is asserted, that cause of action is also dismissed for failure to state a cause of action (CPLR 3211[a]).
It is well settled that "[a] claim for negligent infliction of emotional distress requires a showing that defendants' conduct unreasonably endangered plaintiffs' physical safety or, as exceptions to this rule, that untruthful information regarding death was transmitted or that a corpse was negligently mishandled" (Hart v Child's Nursing Home Co., 298 AD2d 721, 723 [3d Dept 2002], quoting Dobisky v Rand, 248 AD2d 903, 905 [3d Dept 1998]; see Johnson v State of New York, 37 NY2d 378 ; Estate of La More v Sumner, 46 AD3d 1262, 1264 [3d Dept 2007]). Claimant has not alleged any facts that would support this cause of action.
Therefore, the State's Motion to Dismiss the Claim (M-93870) pursuant to CPLR 3211(a)(7), for failure to state a cause of action, is granted.
On January 14, 2019 and January 17, 2019, Claimant filed documents with the Office of the Clerk of the Court that were denominated a Supplemental Claim and a Second Supplemental Claim, respectively, by the Clerk's Office. The documents, which appear to be virtually identical, addressed only the issue of Claimant's alleged damages. Thus, the Court will consider the Second Supplemental Claim to have superceded and replaced the Supplemental Claim (the Claim as amended by the Second Supplemental Claim, collectively hereinafter, the "Amended Claim"). Attached to the State's Motion to Dismiss the Amended Claim as Exhibit A is a copy of the Amended Claim received by Defendant on January 24, 2019. It, likewise, appears to be a copy of the Claim served on December 24, 2018, as amended by the Second Supplemental Claim filed with the Court on January 17, 2019.
As the Amended Claim does not assert any new causes of action, the Court reiterates its determination recited above regarding Claimant's failure to state a cognizable cause of action. The State's Motion to dismiss the Amended Claim (M-93871) served upon it on January 24, 2019, is therefore, granted, and the Amended Claim is dismissed.
On March 4, 2019, Claimant filed a document with the Office of the Clerk of the Court that was denominated an Amended Claim by the Clerk's Office (hereinafter, the "Second Amended Claim"). Attached to the State's Motion to Dismiss the Second Amended Claim as Exhibit A is a copy of the Second Amended Claim received by Defendant on March 5, 2019, which appears to be a copy of the Second Amended Claim filed in the Office of the Clerk. The Court will consider this document to be a Second Amended Claim.
The Court has reviewed the Second Amended Claim, in which Claimant states, for the first time, that he is asserting a cause of action for gross negligence. However, the Second Amended Claim reveals a prolix and confusing discourse of conclusory allegations with cross-references to voluminous documents from which it is impossible to decipher a viable cause of action for gross negligence (Hodge v State of New York, 213AD2d 766, 768 [3d Dept, 1995]; see Valle v State of New York, UID No. 2007-040-060 [Ct Cl, McCarthy, J., Nov. 7, 2007]; Ali v State of New York, UID No. 2006-028-516 [Ct Cl, Sise, J., Feb. 7, 2006]).
To the extent the Second Amended Claim does not assert any new causes of action, the Court reiterates its determination recited above regarding Claimant's failure to state a cognizable cause of action. With respect to the new cause of action sounding in gross negligence, the Second Amended Claim fails to satisfy the pleading requirements of Court of Claims Act § 11(b) and CPLR § 3013. The State's Motion to dismiss the Second Amended Claim (M-93869) served on it on March 5, 2019 is, therefore, granted, and the Second Amended Claim is dismissed.
Therefore, the State's Motions to Dismiss the Claim, the Amended Claim and the Second Amended Claim, pursuant to CPLR 3211(a)(7), for failure to state a cause of action, and Court of Claims Act § 11(b), CPLR § 3013, for failure to satisfy pleading requirements, are granted, and the Claim, Amended Claim, and Second Amended Claim are, hereby, dismissed. The remainders of the Motions are denied as moot.
August 21, 2019
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's Motions for dismissal:
Motion No. M-93870
Notice of Motion, Affirmation, and Exhibits Attached 1
Motion No. M-93871
Notice of Motion, Affirmation, and Exhibits Attached 2
Motion No. M-93869
Notice of Motion, Affirmation, and Exhibits Attached 3
All Three Motions
Affidavit in Opposition 4
Papers filed: Claim, Amended Claim, Second Amended Claim