Opinion
# 2019-041-004 Claim No. 132202 Motion No. M-93213
01-17-2019
GARY GILLARD v. THE STATE OF NEW YORK
NONE HON. LETITIA JAMES New York State Attorney General By: Michael Rizzo, Esq. Assistant Attorney General
Synopsis
Claim which fails to state a cause of action and fails to satisfy pleading requirements of Court of Claims Act 11 (b) is dismissed for lack of subject matter jurisdiction.
Case information
| UID: | 2019-041-004 |
| Claimant(s): | GARY GILLARD |
| Claimant short name: | GILLARD |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132202 |
| Motion number(s): | M-93213 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | NONE |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General By: Michael Rizzo, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 17, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the claim, in lieu of answering, for lack of subject matter jurisdiction and for failure to state a cause of action. Claimant has not appeared in opposition to defendant's motion to dismiss the claim.
The claim was served on the defendant on October 29, 2018. The inmate/claimant alleges that defendant's mail room, legal mail and notary public employees at Clinton Correctional Facility "deliberately tampered with," and deliberately failed to follow claimant's instructions, in copying certain of claimant's CPLR Article 78 proceeding documents.
Claimant alleges that he made his document copying request to defendant's employees on October 2, 2018 and further alleges that, because of defendant's deliberate actions, his "Article 78 special proceeding is now going to Be denied and dismissed for failure of service of papers upon all respondents and their Counsel by 9/28/2018."
Court of Claims Act 11 (b) requires 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 [2007]). 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 [2003]) 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 claim allegedly accrued on October 2, 2018 and requests money damages of $6000.00. The claim contains no allegations explaining why defendant's purported deliberate mail room actions on October 2, 2018 caused claimant to fail to serve documents in his litigation on September 28, 2018. The claim further fails to set forth allegations explaining how claimant arrived at the damages amount of $6000.00 or whether claimant's Article 78 proceeding was actually dismissed.
The claimant manifestly fails to adequately state the nature of the claim as required by Court of Claims Act 11 (b).
It is also well-settled that "[a] cause of action accrues upon the occurrence of all events essential to the claim such that the [claimant] would be entitled to judicial relief" (Utica Mut. Ins. Co. v Avery, 261 AD2d 802, 803 [3d Dept 1999], lv denied 93 NY2d 818 [1999]). In particular, "a claim accrues for purposes of the Court of Claims Act when damages are reasonably ascertainable" (Augat v State of New York, 244 AD2d 835, 836 [3d Dept 1997]; lv denied 91 NY2d 814 [1998]).
The claim's express allegations demonstrate that claimant's alleged damages (prospective dismissal of his Article 78 proceeding) were not yet reasonably ascertainable at the time the claim was served on the defendant.
The claim thus fails to state a cause of action and fails to satisfy Court of Claims Act 11 (b). The Court lacks subject matter jurisdiction over the claim (see DeHart v State of New York, 92 Misc 2d 631, 634 [Ct Cl 1977]: "Although the precise wording of section 11 does not appear to require that a claim state a valid cause of action, the cases are clear that without such a statement a claim is legally deficient and subject to fatal attack, Patterson v State of New York, 54 AD2d 147; Davis v State of New York, 28 AD2d 609; Weinstein v New York State Thruway Auth., 27 Misc 2d 503").
The defendant's motion to dismiss the claim is granted. The claim is dismissed.
January 17, 2019
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion to Dismiss in Lieu of Answer, filed December 5, 2018; 2. Affirmation of Michael C. Rizzo, dated December 5, 2018 and annexed exhibit.