Opinion
# 2019-051-011 Claim No. 131787 Motion No. M-92819 Cross-Motion No. CM-93037
01-14-2019
JOHNATHAN JOHNSON v. STATE OF NEW YORK
JOHNATHAN JOHNSON, PRO SE HON. LETITIA JAMES New York State Attorney General BY: PAUL F. CAGINO, ESQ. Assistant Attorney General
Synopsis
Defendant's motion to dismiss is granted and claimant's cross motion to dismiss defenses is denied.
Case information
| UID: | 2019-051-011 |
| Claimant(s): | JOHNATHAN JOHNSON |
| Claimant short name: | JOHNSON |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131787 |
| Motion number(s): | M-92819 |
| Cross-motion number(s): | CM-93037 |
| Judge: | DEBRA A. MARTIN |
| Claimant's attorney: | JOHNATHAN JOHNSON, PRO SE |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: PAUL F. CAGINO, ESQ. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 14, 2019 |
| City: | Rochester |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read on defendant's motion to dismiss in lieu of an answer (M-92819) and claimant's cross motion to deny defendant's motion to dismiss (CM-93037):
1. Notice of Motion with Affirmation of Paul F. Cagino, AAG, with attached exhibit, filed September 10, 2018;
2. Cross Motion with Affidavit and attached Memorandum of Law, filed October 31, 2018;
3. Filed papers: claim.
Before the Court is the defendant's pre-answer motion to dismiss this claim pursuant to CPLR 3211 (a) (2) and (7). The claim appears to be in response to the discontinuance by Upstate Correctional Facility's medical doctor of previously prescribed medicated soap, lotion and sinus medication, which allegedly caused: "suffering with emotional and mental suffering. Feel discomfort, itching affect stringing of feet, lack of hygienic access to keep claimant body in a clean state of body odors." (¶ 18 of claim.) The stated theories of liability were negligence, failure to supervise, and denial of treatment. The stated grounds for the defendant's motion were that claimant failed to state a cause of action, and untimely service and filing of the claim.
In response, the claimant filed a "cross motion to dismiss and extension" but the only relief requested in the notice was to dismiss the defendant's motion to dismiss. Therefore, the Court will treat it as a reply to the motion and dismiss the cross motion.
In examining whether the claimant has stated a cause of action, the Court must start with the Court of Claims Act § 8 which sets forth the State's waiver of immunity from liability and action for money damages. It is not absolute. Claims are subject to compliance with the limitations of article II of the Court of Claims Act which includes section 11 (see Lepkowski v State of New York, 1 NY3d 201, 206 [2003]). Section 11 (b) of the Court of Claims Act sets forth five elements that the claimant must specify in the claim including: the nature of the claim; the time when and place where it arose; the items of damage or injuries claimed to have been sustained; and the total sum claimed. "Although absolute exactness is not required, the claim must provide a sufficiently detailed description of the particulars of the claim to enable [defendant] to investigate and promptly ascertain the existence and extent of its liability." (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotations and citations omitted].) New York Courts have "strictly construed" the statutory requirements in §11 (b) of the Court of Claims Act. (Lepkowski, 1 NY3d at 207 [internal quotation marks and citations omitted].) A claimant's failure "to comply with the substantive pleading requirements of Court of Claims Act § 11 (b) is a defect resulting in the lack of subject matter jurisdiction which is not waivable." (Somer v State of New York, UID No. 2014-044-525 [Ct Cl, Schaewe, J., June 5, 2014] [internal citations omitted].) This is so, even if the mandated dismissal of the claim results in a harsh outcome (see Kolnacki v State of New York, 8 NY3d 277, 281 [2007]; Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept 2010], lv dismissed 15 NY3d 911, [2010]; Morra v State of New York, 107 AD3d 1115 [3d Dept 2013]).
An additional requirement regarding pleadings is set forth in CPLR § 3013:
"'[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense' . . . The principle purpose of a pleading, particularly a claim or complaint, is to provide notice, to advise the opposing party of the claim (Foley v D'Agostino, 21 AD2d 60)."
(Ali v State of New York, UID No. 2006-028-516 [Ct Cl, Sise, PJ., Feb. 7, 2006].) Accordingly, "[u]nder New York rules of procedure, conclusory averments of wrongdoing are insufficient . . . unless supported by allegations of ultimate facts" (internal quotation marks and citations omitted)." (Graziosi v State of New York, UID No. 2014-028-524 [Ct Cl, Sise, PJ., July 11, 2014].)
Furthermore, although as a general rule the law requires courts to liberally interpret pleadings focusing on substance over form, which is especially so with pro se litigants, "there are nevertheless some essential, common sense limits that must be recognized." (Ali v State of New York, UID No. 2006-028-516 [Ct Cl, Sise, PJ., Feb. 7, 2006.) A claim must be dismissed when conclusory allegations make it impossible to discern a viable cause of action. (Lepkowsi, 1 NY3d at 209-210.) To deny defendant's motion to dismiss would, "in effect, be rewarding the Claimant for merely filing as confusing and prolix a document as possible in the hope that it would confuse Defendant's counsel." (Jacobs v State of New York, UID No. 2004-031-140 [Ct Cl, Minarik, J., Nov. 1, 2004].) New York Courts have repeatedly held that defendants are not required "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski, 1 NY3d at 208).
Turning to the allegations in this particular claim, it is important to give context. In prior cases involving this claimant, the Court has reviewed the statistics: since 1998, he has filed 185 claims and 271 motions, and currently has over 70 open cases. It appears that, beginning in February 2008, an estimated 60 of his claims dealt specifically with the same issues presented in the instant claim: allegations of failure to provide skin cream, soap and various medications. Significantly, however, in those prior claims, claimant listed the days on which he claimed the medication was not provided.
Johnson v State of New York, UID 2017-051-036 (Ct Cl, Martin, J., June 12, 2017), and Johnson v State of New York, UID No. 2017-051-054 (Ct Cl, Martin, J., Sept. 22, 2017).
Here, the claim described a six month period, January 2018 through July 2018 without referencing any particular date and, on one occasion, some day in July 2018 between 6:00 a.m. and 6:30 a.m. Although claimant argues in his reply that the denial of medication was continuous, that point is contradicted by the allegations in paragraphs 13-16 of his claim that state certain medications were reordered, then discontinued again. Furthermore, claimant has access to his medical records and could provide accurate dates. Even given the most liberal reading, the claim is confusing and lacks sufficient detail to enable the defendant to determine the exact nature of his claims, or when they arose. Likewise, claimant failed to allege the required elements to state causes of action for sexual harassment, medical negligence or malpractice, or negligent supervision causes of action. The consequence of claimant's failure to meet the pleading requirements of Court of Claims Act § 11 (b) is the Court's lack of subject matter jurisdiction over his claim. (Rivera v State of New York, 52 AD3d 1075 [3d Dept 2008].) Moreover, claimant's cause of action for sexual harassment was not filed within 90 days of its accrual and, therefore, the Court was "divested of subject matter jurisdiction" and it must also be dismissed on this alternative ground. (Encarnacion v State of New York, 112 AD3d 1003, 1004 [3d Dept 2013].)
Accordingly, defendant's motion to dismiss (M-92819) is granted and claim no. 131787 is dismissed in its entirety. Claimant's cross motion to dismiss (CM-93037) is denied.
January 14, 2019
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims