Opinion
# 2020-032-062 Claim No. 134250 Motion No. M-95324 Motion No. M-95400
08-10-2020
DURRELL MCCULLOUGH v. STATE OF NEW YORK
Durrell McCullough, Pro Se Hon. Letitia James, Attorney General By: Ray A. Kyles, AAG
Synopsis
Defendant's motion to dismiss is denied. Court of Claims Act § 11 (a) (i) does not require filed claim and claim served upon the Attorney General to be exact copies and claimant's statement of a total sum of damages does not render the claim jurisdictionally defective.
Case information
| UID: | 2020-032-062 |
| Claimant(s): | DURRELL MCCULLOUGH |
| Claimant short name: | MCCULLOUGH |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 134250 |
| Motion number(s): | M-95324, M-95400 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Durrell McCullough, Pro Se |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Ray A. Kyles, AAG |
| Third-party defendant's attorney: | |
| Signature date: | August 10, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed the instant claim with the Clerk of the Court on January 6, 2020. The claim alleges that, on November 14, 2018, claimant was assaulted by three inmates in the main yard at Five Points Correctional Facility (FPCF). Claimant alleges that the New York State Department of Corrections and Community Supervision (DOCCS) was aware of the risk to claimant and failed to protect him. Defendant now moves to dismiss the claim on the grounds that (1) claimant failed to serve a "copy" of the claim upon the Attorney General as required by Court of Claims Act § 11 (a) (i); (2) claimant included a total sum of damages in contravention of Court of Claims Act § 11 (b) and CPLR 3017; and (3) the claim fails to state a cause of action. Claimant cross-moves to amend the claim.Court of Claims Act § 11 (a) (i) states that "[t]he claim shall be filed with the clerk of the court; and . . . a copy shall be served . . . upon the attorney general . . . ." Here, defendant argues that "the Attorney General was served with an original handwritten copy of the claim. The claim was received on wide-rule notebook paper. This clearly indicates that the claim served upon the state was not a copy, but an original handwritten document" (Affirmation of Ray A. Kyles, AAG, ¶ 8). For this reason, the State argues that claimant failed to satisfy the plain meaning of Court of Claims Act § 11 (a) (i), which requires that a "copy" of the claim be served upon the Attorney General.
In support of its argument, defendant cites to Buskirk v State of New York, 22 Misc 3d 963 [Ct Cl 2008], affd 70 AD3d 1313 [4th Dept. 2010], lv denied 72 AD3d 1659 [4th Dept. 2010]) but misstates its ultimate holding. In Buskirk, the Court noted that "[s]everal decisions of the Court of Claims have dismissed a claim where a material discrepancy existed between the pleading filed and that which was served" and proceeded to cite several Court of Claims decisions dismissing claims where a material discrepancy existed between the claim filed and the claim served upon the Attorney General (Buskirk v State of New York, 22 Misc 3d at 956). However, the Court went on to state that "[s]ignificantly, none of those decisions held that the served copy must exactly mirror the original claim" (id.; see also Hardy v State of New York, UID No. 2007-034-554 [Ct Cl, Hudson, J., Jan. 4, 2008]). Importantly, this Court stated in Gordon v State of New York that "[a]s a practical matter some variation between the claim and the copy that is served on defendant is and should be tolerated, particularly when the documents are handwritten separately" (Gordon v State of New York, UID No. 2003-032-133 [Ct Cl, Hard, J., Dec. 31, 2003]).
Here, the Court has reviewed the claim filed with the Clerk of the Court on January 6, 2020 and the claim served upon the Attorney General (Kyles Aff., Ex. B), and finds that the two claims are nearly identical in all respects except for their pagination. Importantly, the allegations asserted in the two claims are identical. Therefore, the Court finds that insofar as defendant seeks dismissal of the claim for claimant's failure to comply with Court of Claims Act § 11 (a) (i), its argument is completely without merit.
Defendant also argues that the claim fails to state a cause of action. The Court disagrees, as the claim adequately alleges a claim for negligent supervision.
In order to establish that the State is liable for an assault perpetrated by an inmate, the claimant must allege and ultimately prove that the State knew or should have known that there was a risk of harm to the claimant which was reasonably foreseeable and inadequately addressed (Sanchez v State of New York, 99 NY2d 247, 252 [2002]). A claimant must prove one of the following: (1) that the State knew or should have known that claimant was at risk of being assaulted and yet failed to provide claimant with reasonable protection; (2) that the State knew or should have known that the assailant was prone to perpetrating such an assault and the State did not take proper precautionary measures; or (3) that the State had ample notice and opportunity to intervene but did not act (id.). Here, claimant alleges that he was assaulted by three inmates on November 14, 2018 in the main yard at FPCF. Claimant alleges that defendant failed to adequately staff the main yard despite knowing that it was a prime location for inmate-on-inmate assaults. The claim further alleges that the correction officers in the main yard failed to intervene in the attack on claimant once it began. Based upon the allegations in the claim, the Court finds that claimant adequately stated a claim for negligent supervision.
Lastly, defendant argues that the claim should be dismissed because claimant failed to strictly comply with Court of Claims Act § 11 (b) by making a demand of $2.4 million dollars in the claim. Court of Claims Act § 11 (b) states in part: "The claim shall state the time when and place where such claim arose, the nature of same, and 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." Defendant argues that, because Court of Claims Act § 11 (b) specifically excepts personal injury claims from the total sum requirement, claimant's inclusion of a dollar amount necessitates dismissal of the claim for failure to strictly adhere to the pleading requirements set forth in Court of Claims Act § 11 (b).
" 'When presented with a question of statutory interpretation, [the Court's] primary consideration is to ascertain and give effect to the intention of the Legislature' " (People v Andujar, 30 NY3d 160, 166 [2017], quoting Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006] [internal quotation marks and citation omitted]). "[T]he starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" (Majewski v Broadalbin-Perth Cent. Sch. Dist., 91 NY2d 577, 583 [1998]). The language of Court of Claims Act § 11 (b) indicates that a total sum is affirmatively required in all claims except those for personal injury, medical, dental or podiatric malpractice or wrongful death. Thus, the language of the statute indicates that a total sum is simply not required in those claims, as opposed to defendant's argument that the language indicates that the inclusion of a total sum is definitively prohibited.
In 2007, the New York State Legislature amended Court of Claims Act § 11 (b) to "eliminate[] the requirement that a personal injury, wrongful death, or medical, dental or podiatric malpractice claim filed in the Court of Claims must state the amount of damages to which the claimant believes he or she is entitled" (Governor's Approval Mem, Bill Jacket, L 2007, ch 606 at 5). The Legislature noted that it was removing the requirement in response to the Court of Appeals' decision in Kolnacki v State of New York, 8 NY3d 277 [2007], which held that the failure to include the total sum of damages in a personal injury claim was a fatal jurisdictional defect requiring dismissal of the claim (id.). Acting Presiding Judge of the Court of Claims, Richard E. Sise, wrote in support of the amendment before its passage, noting that the total sum requirement had become a "trap" for Court of Claims practitioners bringing a personal injury suit, as the CPLR expressly prohibits pleadings brought in Supreme Court from stating an amount of damages where the cause of action is for personal injury (see Letter from Hon. Richard E. Sise, Aug. 6, 2007, Bill Jacket, L 2007, ch 606 at 32; CPLR 3017). Thus, the legislative history of Court of Claims Act § 11 (b) establishes that the prohibition on stating a total sum of damages in personal injury actions was meant to ameliorate the issue of subjecting meritorious claims to dismissal on jurisdictional grounds for their failure to state a total sum of damages, which in many cases is difficult to ascertain at the time of filing. To adopt the argument that defendant sets forth in the instant motion would amount to setting another trap for litigants wherein meritorious claims are subject to dismissal on jurisdictional grounds for including a total sum of damages. Such a precedent is in clear contravention of the Legislature's goal in amending section 11 (b). To be sure, the Court of Appeals stated in Lepkowski v State of New York, that "the guiding principle informing section 11 (b)" was " 'to enable the State ... to investigate the claim[s] promptly and to ascertain its liability under the circumstances[]' " (Lepkowski v State of New York, 1 NY3d 201, 207 [2003], quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept. 1980]). Here, claimant's allegations are sufficient to meet the requirements of Court of Claims Act § 11 (b) and claimant's inclusion of a total sum of damages does not render the claim jurisdictionally defective.
Claimant denominated the response filed to the instant motion as a "motion to amend" and the document was filed as a motion (M-95400). However, the document asserts responses to defendant's arguments in its dismissal motion and the document is more properly characterized as an affirmation in response. In any case, claimant's request to amend the claim is denied as claimant failed to attach a proposed amended claim (Harris v State of New York, UID No. 2013-032-039 [Ct Cl, Hard, J., Sept. 3, 2013]).
Accordingly, the Court denies defendant's motion to dismiss the claim (M-95324) in its entirety. Claimant's motion to amend the claim (M-95400) is also denied.
August 10, 2020
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Verified Claim, filed on January 6, 2020. 2. Notice of Motion to Dismiss Claim, dated February 11, 2020; and Affirmation in Support Motion to Dismiss, affirmed by Ray A. Kyles, AAG on February 11, 2020, with Exhibits A through B annexed thereto. 3. Motion to Amend Complaint in Opposition of Attorney Generals Motion to Dismiss, sworn to by claimant on March 4, 2020. 4. Affirmation in Opposition to Motion to Amend Claim, affirmed by Ray A. Kyles, AAG on July 16, 2020.