Successive motion to dismiss denied; cross motion to strike the answer denied.
|Claimant(s):||RICHARD A. COOK, JR.|
|Claimant short name:||COOK|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||Richard A. Cook, Jr., Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Ray A. Kyles, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 9, 2019|
|See also (multicaptioned case)|
Defendant moves pursuant to CPLR 3211(a) (2), (a) (7), and (a) (8) to dismiss the Claim (M-94693). Specifically, Defendant contends that the Court lacks jurisdiction over the Claim because Claimant failed to timely serve the Claim or a Notice of Intention to File a Claim within 90 days of accrual in accordance with Court of Claims Act §§ 10 (3), (3-b) and 11. Additionally, Defendant argues that the Claim fails to state a cause of action upon which relief can be granted. Claimant opposes the motion and cross-moves to strike Defendant's answer (CM-94847). As Defendant's motion implicates this Court's jurisdiction, it will be addressed first.
Pro se Claimant Richard A. Cook, Jr. filed this Claim on April 11, 2014 seeking damages stemming from his arrest for allegedly driving while intoxicated and other Vehicle and Traffic Law violations which occurred on May 31, 2008. The Claim, which named as Defendants the State of New York, the Superintendent of the New York State Police, and New York State Trooper Timothy Betlewicz, alleged causes of action for false arrest, malicious prosecution, and negligent supervision.
In May 2014, Defendant moved to dismiss the Claim pursuant to CPLR 3211 (M-85147). In particular, Defendant asserted that Claimant's causes of action for false arrest and malicious prosecution should be dismissed as barred by the one-year statute of limitations (see Affirmation of Ed J. Thompson, Esq., Assistant Attorney General, dated May 21, 2014 ¶¶ 8-10 [M-85147]). Defendant also contended that the causes of action against the Superintendent of the New York State Police and New York State Trooper Timothy Betlewicz should be dismissed because the Court lacked jurisdiction over the individual defendants (see id. ¶ 5). With respect to Claimant's claim for negligent supervision, Defendant generally argued "the untimely claim was served and filed well beyond the statute of limitations" (id. ¶ 11).
By Decision and Order dated September 15, 2016 and entered October 19, 2016, this Court (Midey, Jr., J. [Ret.]), as relevant here, (1) granted Defendant's motion in part and dismissed the causes of action alleging false arrest and malicious prosecution and those causes of action asserted against the Superintendent of the New York State Police, and New York State Trooper Timothy Betlewicz and (2) denied the motion with respect to Claimant's cause of action for negligent supervision (see Cook v State of New York, Claim No. 124204, Motion Nos. M-85147, M-87338, CM-85503 [Ct Cl, Midey, Jr., J. (Ret.), Sept. 15, 2016]). Specifically, the Court concluded that, unlike Defendant's arguments with respect to the claims for false arrest and malicious prosecution, Defendant failed to specifically address any timeliness issues with respect to Claimant's cause of action for negligent supervision (id. at 6). The Court observed that neither party addressed the date in which the cause of action for negligent supervision accrued and "g[a]ve [C]laimant the benefit of the doubt" in holding that such cause of action accrued when Claimant's criminal proceedings were disposed of on March 13, 2013 (id.). Because Defendant did not refute in its motion that Claimant properly served a Notice of Intention to File a Claim on March 20, 2013, and the Claim was filed and served on April 11, 2014, the Court concluded that Claimant's cause of action for negligent supervision was timely brought within the two-year statute of limitations (see id. at 6-7; see also Court of Claims Act § 10 ).
Defendant now moves pursuant to CPLR 3211 (a) (2), (a) (7), and (a) (8) to dismiss the negligent supervision cause of action--the only cause of action to survive Defendant's prior motion to dismiss (M-94693). Specifically, Defendant argues that the Claim fails to state a cause of action for negligent supervision because Claimant did not allege that State Trooper Timothy Betlewicz was acting outside the scope of his authority (see Affirmation of Ray A. Kyles, Esq., Assistant Attorney General, in Support of the Motion to Dismiss ¶ 6). Alternatively, Defendant contends that Claimant's cause of action for negligent supervision is untimely because neither a Claim nor a Notice of Intention to File a Claim was timely served within 90 days of accrual (see id. ¶ 10). Claimant opposes Defendant's motion and cross-moves for an order striking the answer (CM-94847). In particular, Claimant argues that the motion to dismiss must be denied because it contains false representations of fact and is untimely. In essence, Claimant argues that the motion to dismiss contradicts the prior decision and order of this Court which denied Defendant's first motion to dismiss.
"The single motion rule" set forth in CPLR 3211 (e) "prohibits parties from making successive motions to dismiss a pleading" (Ramos v City of New York, 51 AD3d 753, 754 [2d Dept 2008]). "The rule bars both repetitive motions to dismiss a pleading pursuant CPLR 3211(a), as well as subsequent motions to dismiss that pleading pursuant to CPLR 3211(a) that are based on alternative grounds" (Bailey v Peerstate Equity Fund, L.P., 126 AD3d 738, 739 [2d Dept 2015]).
Like Defendant's first motion to dismiss, the instant motion seeks dismissal of the negligent supervision cause of action on the ground that it was not timely served and filed. However, this Court concluded in its previous order that such Claim was timely (see Cook v State of New York, Claim No. 124204, Motion Nos. M-85147, M-87338, CM-85503 [Ct Cl, Midey, Jr., J. (Ret.), Sept. 15, 2016], at 6-7). Consequently, the Court concludes that this prior determination as to the timeliness of the negligent supervision claim is the law of the case (see Prosser v Gouveia, 98 AD2d 992, 993 [4th Dept 1983]; John R. Higgitt, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:66).
However, Defendant's prior motion did not raise, and the Court's prior decision did not address, whether the Claim stated a cause of action for negligent supervision. Contrary to Claimant's contention, a motion to dismiss premised on the failure to state a cause of action may be raised at any time and thus is not time-barred (see Quigley v City of Oswego, 71 AD2d 795, 795 [4th Dept 1979], lv denied 48 NY2d 607 ). Although Defendant did not waive the defense of failure to state a cause of action by failing to plead it in its prior motion to dismiss, it is improper to raise such defense in a successive motion to dismiss pursuant to CPLR 3211 (see Ramos, 51 AD3d at 754; McLearn v Cowen & Co., 60 NY2d 686, 689 ). Instead, Defendant must raise such defense "in another form," such as a motion for summary judgment pursuant to CPLR 3212 (McLearn, 60 NY2d at 689; see Oakley v County of Nassau, 127 AD3d 946, 947 [2d Dept 2015]). Accordingly, Defendant's successive motion to dismiss pursuant to CPLR 3211 must be denied.
Turning to the cross motion, Claimant argues that the Court should strike Defendant's answer for the failure to answer certain interrogatories (see Affidavit of Richard A. Cook, Jr., sworn to on October 29, 2019 ¶¶ 28-36, 49 & Ex 2).(1) Defendant did not respond to Claimant's cross motion.
Pursuant to CPLR 3126, the Court has discretion to sanction a party for failing to comply with discovery orders and abusing the discovery process (see Thompson v Dallas BBQ, 84 AD3d 1221, 1221 [2d Dept 2011]). "However, the drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery demands is willful or contumacious" (Pinto v Tenenbaum, 105 AD3d 930, 931 [2d Dept 2013]). The Court concludes that Claimant has failed to make such a showing.
Nevertheless, the Court is mindful of the approaching discovery deadlines as set forth in the September 23, 2019 discovery order and directs the parties to work amicably towards the completion of discovery. As Claimant notes, there is no proof that Defendant responded to or otherwise objected to Claimant's two sets of interrogatories filed on February 1, 2017 and March 15, 2017. Although this matter was before the undersigned for a status conference on September 20, 2019, neither party raised any issues relative to discovery. Given that the Uniform Rules for the Court of Claims (22 NYCRR) § 206.8 (b) requires the parties to confer with the undersigned before making a discovery motion, the Court hereby schedules a status conference to be held by telephone on January 15, 2020 at 10:00 a.m. to resolve all outstanding issues with discovery. Defendant, however, is reminded of its obligation to submit responses and/or objections to interrogatories within 20 days after service of same (see CPLR 3133 [a]).
Accordingly, it is hereby:
ORDERED that Defendant's Motion No. M-94693 is denied; and it is further
ORDERED that Claimant's Cross Motion No. CM-94847 is denied; and it is further
ORDERED that a status conference by telephone in the above Claim is hereby scheduled for January 15, 2020 at 10:00 a.m. The Court shall initiate the call.
December 9, 2019
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
(1) Notice of Motion to Dismiss Claim, dated September 30, 2019.
(2) Affirmation of Ray A. Kyles, Esq., Assistant Attorney General in Support of Motion to Dismiss, dated September 30, 2019, with exhibits.
(3) Notice of Cross Motion, dated November 4, 2019.
(4) Affidavit of Richard A. Cook, Jr., sworn to on October 29, 2019, with exhibits.(5) Motion No. M-85147, returnable on October 21, 2015, and papers submitted in support thereto.
1. Only a portion of Claimant's interrogatories are attached to the motion.