Opinion
# 2016-038-522 Claim No. 126759 Motion No. M-87447 Cross-Motion No. CM-87531
05-09-2016
ERIC DRAKE v. THE STATE OF NEW YORK
ERIC DRAKE, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Michael C. Rizzo, Assistant Attorney General
Synopsis
Defendant's motion to dismiss the claim for failure to state a cause of action pursuant to CPLR 3211 (a) (7) denied. Claim alleges that defendant offered a reward for information leading to the capture of two prison escapees, and that claimant provided defendant with certain information. Those allegations, given the liberal reading required on a motion to dismiss for failure to state a cause of action, are sufficient to plead consideration on a contract.
Case information
| UID: | 2016-038-522 |
| Claimant(s): | ERIC DRAKE |
| Claimant short name: | DRAKE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126759 |
| Motion number(s): | M-87447 |
| Cross-motion number(s): | CM-87531 |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | ERIC DRAKE, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Michael C. Rizzo, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 9, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This claim alleges that the State breached its contract and/or duty to provide claimant with the reward or bounty offered by defendant for the capture of two inmates who escaped from Clinton Correctional Facility in June 2015. Defendant makes this pre-answer motion to dismiss the claim for failure to state a cause of action. Initially, claimant did not oppose the motion, but has cross-moved to "nonsuit" the claim. Claimant has since requested that his cross motion for a "nonsuit" be withdrawn so that he may continue to pursue a remedy in this Court. His further submission does not assert any opposition to defendant's motion to dismiss the claim.
Claimant's cross-motion for this relief, which was initially considered by the Court to be a motion seeking an order of voluntary discontinuance pursuant to CPLR 3217 (b), asserted that the Court of Claims was an improper forum because claimant wishes to pursue his claim before a jury, and because claimant had instituted a federal action in the State of Texas against defendant and that it is improper for him to have two pending legal proceedings on the same subject matter.
Claimant's cross motion to "nonsuit" this claim will be dismissed upon claimant's request and without opposition from defendant.
Defendant moves to dismiss the claim for failure to state a cause of action pursuant to CPLR 3211 (a) (7). The claim alleges that the Governor of New York offered to pay $100,000.00 in reward money for information leading to the capture of two inmate escapees, thereby entering into a verbal contract with the general public. The claim alleges that:
Claimant foresaw the following concerning David Sweat and Richard Matt: 1). The two inmates separated for some reason, 2). That the police were walking right by or over them were [sic] they were hiding-Claimant advised the authorities to look under things or around or about them, 3). That Joyce Mitchell had more information than appeared, and that the police should play 'bad cop' 'bad cop,' to get more information from her, 4). That one of the escapees was heading for the mountains and clear rivers."
(Claim No. 126759, ¶ 8). Defendant asserts that this information was "provided without actual knowledge of any events surrounding the escape or search. The purported information is of such a general, speculative or common sense nature that it could not assist authorities in pursuing the escapees. Thus the claim does not allege that claimant provided anything of value to the defendant" (Rizzo Affidavit, ¶ 6). Defendant contends that "no valid contract exists. The State offered $100,000.00 for information leading to the capture of the two suspects. The purported contract herein is not valid due to lack of consideration. Claimant has not alleged he has provided anything of value to warrant receipt of the reward" (id., ¶ 4).
On a motion to dismiss for failure to state a cause of action:
"claimant's claim is liberally construed and all facts asserted therein . . . are accepted as true (see CPLR 3026; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; see also Nonnon v City of New York, 9 NY3d 825, 827 [2007]; State of New York v Shaw Contract Flooring Servs., Inc., 49 AD3d 1078, 1079 [2008]). Where, as here, the motion is premised upon claimant's failure to state a claim (see CPLR 3211[a][7] ) . . . the dispositive inquiry is whether it has a cause of action and not whether one has been stated, i.e., "whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; accord Nonnon v City of New York, 9 NY3d at 827)."
(IMS Engrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [3d Dept 2008], lv denied 11 NY3d 706 [2008]). Here, defendant's only argument is that the claim does not allege sufficient consideration by claimant to create an enforceable contract. However, giving the claim the liberal construction which is due on a motion pursuant to CPLR 3211 (a) (7), and as defendant acknowledges, the claim alleges that claimant provided the authorities with information, and an affidavit that is attached to the claim asserts that this information was provided to the Governor's office prior to the capture of the two escapees (see Claim, Exhibit A, ¶ 2). These facts, accepted as true, state the consideration allegedly given by claimant. Inasmuch as defendant makes no other argument in support of its motion, the motion to dismiss the claim for failure to state a cause of action will not be granted.
Accordingly, it is
ORDERED, that defendant's motion M-87447 to dismiss the claim is DENIED, and it is further
ORDERED, that claimant's cross motion CM-87531 is DISMISSED.
May 9, 2016
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 126759, filed September 17, 2015; (2) Notice of Motion (M-87447), dated September 26, 2014 [sic]; (3) Affidavit of Michael C. Rizzo in Opposition [sic], sworn to October 8, 2015, with Exhibit A; (4) Claimant's Motion [to] the Court for Nonsuit, filed October 21, 2015; (5) Correspondence of Eric Drake, dated February 5, 2016 and received February 10, 2016; (6) Claimant's "Motion to Withdraw His Motion for Nonsuit of His Claims against State of New York Motion No: CM-87531," filed February 10, 2016.