The claim is dismissed for failure to comply with Court of Claims Act § 11 (b).
|Claimant(s):||PHILLIP WILLIAMS-COOKE AND JOSEPH COOKE|
|Claimant short name:||COOKE|
|Footnote (claimant name) :|
|Defendant(s):||NEW YORK STATE OFFICE OF MENTAL HEALTH-NEW YORK CITY FIELD OFFICE|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Phillip Williams-Cooke, Pro Se
Joseph Williams-Cooke, Pro Se
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Lawrence E. Kozar, AAG
|Third-party defendant's attorney:|
|Signature date:||August 3, 2020|
|See also (multicaptioned case)|
Claimants, proceeding pro se, filed the instant claim with the Clerk of the Court on December 16, 2019. The claim alleges that claimants, who are clients of the Association for Rehabilitative Case Management and Housing, Inc. (ACMH), have been threatened and physically assaulted by ACMH staff.(2) Additionally, claimants allege that ACMH discriminated and retaliated against them on the basis of their sexual orientation. However, the claim does not state any specific instances of threats, assaults, discrimination or retaliation. Defendant now moves to dismiss the claim on the grounds that: (1) the claim fails to comply with Court of Claims Act § 11 (b); and (2) the claim is defective as it failed to include a verification as required by Court of Claims Act § 11 and CPLR 3020 and 3021. Claimants oppose the motion.
"The State's waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature" (Lepkowski v State of New York, 1 NY3d 201, 206 ; see Court of Claims Act § 8; Alston v State of New York, 97 NY2d 159, 163 ). Moreover, "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Matter of New York City Asbestos Litig., 24 NY3d 275, 281  [internal quotation marks and citations omitted]). As relevant here, Court of Claims Act § 11 (b) "places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) the nature of [the claim]; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed" (Lepkowski v State of New York, 1 NY3d at 206 [internal quotation marks omitted]). "Absolute exactness is not required, but the claim must enable prompt investigation and be sufficiently specific to enable [a] defendant to reasonably infer the basis for its alleged liability" (Davila v State of New York, 140 AD3d 1415, 1416 [3d Dept. 2016] [internal quotation marks and citations omitted]; see Morra v State of New York, 107 AD3d 1115, 1115 [3d Dept. 2013]; Deep v State of New York, 56 AD3d 1260, 1261 [4th Dept. 2008]). However, defendants are not required "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d at 208).
Here, defendant alleges that, in "paragraph 2" of the claim, which directs the claimant(s) to list the acts or omissions of defendant, claimants wrote "see attachment for details" but failed to include the attachment (Affirmation of Lawrence E. Kozar, AAG ¶ 5, Exhibit A). In their response papers, claimants have provided the attachment (see Letter from claimants, dated February 18, 2020). The claim filed with the Clerk of the Court also includes an "Attachment for Question #2" that lists the alleged acts or omissions of the defendant. The attachment in the claim filed with the Court and the attachment provided in claimants' response papers are identical. However, upon review of the allegations contained in the claim, the Court finds that the allegations do not comply with Court of Claims Act § 11 (b). Claimants state that they "have been harassed and discriminated against numerous times on the basis of our sexual orientations, threatened, physically assaulted, and retaliated against by both ACMH staff and one of the agency's clients . . ." (see Verified Claim, Attachment for Question #2), but the claim fails to set forth any specific instances of threats, assaults, discrimination or retaliation. "Conclusory or general allegations . . . that fail to adduce the manner in which the claimant was injured and how the State was negligent do not meet its requirements" (Heisler v State of New York, 78 AD2d 767, 768 [4th Dept. 1980]). Even if the "Attachment for Question #2" had been provided to defendant, the allegations within the claim leave defendant unable to discern the conduct for which claimants seek to hold it liable. Accordingly, the claim must be dismissed for claimants' failure to comply with Court of Claims Act § 11 (b) (Clark v State of New York, UID No. 2017-041-010 [Ct Cl, Milano, J., Feb. 22, 2017]).
Additionally, claimants failed to include a verification page with both the claim filed with the Court and the claim served upon defendant. Court of Claims Act § 11 (b) requires that notices of intention and claims "be verified in the same manner as a complaint in an action in the supreme court." Verification of a complaint in supreme court requires a "statement under oath that the pleading is true to the knowledge of the deponent, except as to matters alleged on information and belief, and as to those matters he believes it to be true" (CPLR 3020 [a]). CPLR 3022 provides that "when a pleading is required to be verified, the recipient of an unverified or defectively verified pleading may treat it as a nullity provided that the recipient 'with due diligence' returns the [pleading] with notification of the reason(s) for deeming the verification defective" (Lepkowski v State of New York, 1 NY3d at 210, citing Matter of Miller v Board of Assessors, 91 NY2d 82, 86 ). Here, defendant notified claimants of its rejection of the unverified claim by returning the claim, together with a rejection letter on January 6, 2020, the same day the New York State Attorney General's Office received the unverified claim. Accordingly, the Court finds that the claim must be dismissed for claimants' failure to verify the claim pursuant to Court of Claims Act § 11 (b).
Based upon the foregoing, it is hereby
ORDERED that defendant's motion to dismiss the claim is GRANTED and claim number 134154 is DISMISSED.
August 3, 2020
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion, dated February 14, 2020; and Affirmation in Support, affirmed by Lawrence E. Kozar, AAG on February 14, 2020 with Exhibit A annexed thereto.2. Letter from Claimants, dated February 18, 2020, with Attachments.
2. The claim alleges that ACMH is a housing agency overseen by the New York State Office of Mental Health.