Defendant's motion to dismiss claim for lack of subject matter jurisdiction because it fails to adequately state the nature of the claim, as required by Court of Claims Act 11 (b), and fails to state a cause of action, is granted.
|Claimant short name:||WILLIAMS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Anthony Rotondi, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 23, 2019|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim pursuant to both Court of Claims Act 11 (b) for lack of subject matter jurisdiction because it lacks the particularity required, and pursuant to CPLR 3211 (a) (7) because the claim fails to state a cause of action. Claimant has not opposed the defendant's motion(1) .
The claim alleges that the inmate-claimant was attacked at Clinton Correctional Facility by "an unknown inmate with a "sharp type of weapon" at 10:00 a.m. on July 30, 2016.
Defendant asserts that claimant has failed to sufficiently set forth the nature of the claim as required by Court of Claims Act 11 (b), thus depriving the Court of jurisdiction.
Court of Claims Act 11 (b) provides that:
"The claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed."
A claim against the State is permissible only as a result of the State's waiver of sovereign immunity and the statutory requirements conditioning suit must therefore be strictly construed (Kolnacki v State of New York 8 NY3d 277, 280 ). The Kolnacki court noted that the requirements of section 11 (b) are "substantive conditions upon the State's waiver of sovereign immunity" (quoting Lepkowski v State of New York, 1 NY3d 201, 207 ) and that the failure to satisfy any of the conditions is a jurisdictional defect (Kolnacki, 8 NY3d at 280-281). The Kolnacki decision stresses that "nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary" (Kolnacki, 8 NY3d at 281).
The strict pleading requirements of Court of Claims Act 11 (b) were reiterated in Rivera v State of New York (52 AD3d 1075 [3d Dept 2008]):
"Statutory conditions placed on claims against defendant must be strictly construed, mandating a dismissal for lack of jurisdiction if the claim does not meet the substantive pleading requirements found in Court of Claims Act § 11 (b)."
The Rivera court, quoting Lepkowski (1 NY3d at 208) reminded that:
"The Court of Claims Act does not require [defendant] to ferret out or assemble information that section 11 (b) obligates the claimant to allege."
The claim appears to seek recovery from defendant for not preventing an assault on claimant by a fellow inmate though the claim never alleges that basis of recovery explicitly.
The substantive law underlying a claim alleging failure to protect an inmate from assault by a fellow inmate is clear:
"Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates" (Sanchez v State of New York, 99 NY2d 247, 252 ). "This duty, however, is limited to providing reasonable care to protect inmates from risks of harm that defendant knew or should have known were foreseeable" (Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). "The State . . . is not an insurer of inmate safety, and negligence cannot be inferred solely from the happening of an incident" (Colon v State of New York, 209 AD2d 842, 843 [3d Dept 1994]).
The claim does not allege any facts tending to show that the attack by an unknown fellow inmate was either reasonably foreseeable or preventable. The claim fails to set forth any basis for finding defendant liable for claimant's injuries even conceding the truth of everything alleged in the claim.
Claimant has failed to comply with the substantive pleading requirements of section 11 (b) of the Court of Claims Act and the Court therefore lacks jurisdiction over the claim. The claim fails to state a cause of action for recovery based upon defendant allegedly failing to protect claimant from assault.
The claim is dismissed.
September 23, 2019
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Defendant's Notice of Motion to Dismiss, filed June 6, 2019;
2. Affirmation of Anthony Rotondi, dated June 6, 2019, and attached exhibits;
3. "Amended claim" verified by Samuel Williams on August 14, 2019, bearing claim number 128356, and received by the Clerk of the Court of Claims on August 21, 2019.
1.On August 21, 2019, the Clerk of the Court of Claims received from claimant a new or amended claim bearing an identical claim number (128356) to the claim which is the subject of defendant's instant motion to dismiss. The new or amended claim is far more detailed than the claim which is the subject of defendant's motion to dismiss. To the extent claimant is attempting to amend his claim to cure the jurisdictional defects alleged by defendant, it is well-settled that where the Court lacks jurisdiction over the claim, as pled and served, that lack of jurisdiction may not be cured by amendment of the claim (see Hogan v State of New York, 59 AD3d 754, 755 [3d Dept 2009]; Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983 [3d Dept 1986]).