Opinion
# 2015-009-035 Claim No. 124665 Motion No. M-85549
12-16-2015
CORY McGEE v. THE STATE OF NEW YORK
THE LAW OFFICE OF BETH J. SCHLOSSMAN, ESQ. BY: Beth J. Schlossman, Esq., Of Counsel. HON. ERIC T. SCHNEIDERMAN Attorney General BY: Bonnie Gail Levy, Esq., Assistant Attorney General, Of Counsel.
Synopsis
Defendant's motion to dismiss the claim based on an alleged failure to comply with the pleading requirements of § 11 (b) was denied.
Case information
| UID: | 2015-009-035 |
| Claimant(s): | CORY McGEE |
| Claimant short name: | McGEE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124665 |
| Motion number(s): | M-85549 |
| Cross-motion number(s): | |
| Judge: | NICHOLAS V. MIDEY JR. |
| Claimant's attorney: | THE LAW OFFICE OF BETH J. SCHLOSSMAN, ESQ. BY: Beth J. Schlossman, Esq., Of Counsel. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General BY: Bonnie Gail Levy, Esq., Assistant Attorney General, Of Counsel. |
| Third-party defendant's attorney: | |
| Signature date: | December 16, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant has brought this motion seeking an order dismissing the claim on the ground that the claim fails to comply with the pleading requirements of Section 11 (b) of the Court of Claims Act and is therefore jurisdictionally defective.
The following papers were considered by the Court in connection with this motion:
Notice of Motion; Affirmation in Support, with Exhibits 1, 2
Affirmation in Opposition, with Exhibits 3
Filed Papers: Claim.
In his claim, claimant seeks damages from the State based upon personal injuries suffered by him when he was attacked by another inmate at Five Points Correctional Facility, Romulus, New York, where they were both then incarcerated.
In his filed claim, claimant alleges, in part, as follows:
"This claim accrued on the 18th day of April, 2014, at approximately 8:45pm, while the claimant, CORY McGEE, was an inmate in the custody of the defendant and confined at Five Points Correctional Facility, located at State Route 96, P.O. Box 119,Romulus, New York 14541, he was assaulted, battered, attacked, menaced, and harassed by another inmate in the main yard of the aforesaid facility.
The defendant, through its agents, servants, and/or employees, was negligent in
the ownership, operation, management and control of the aforesaid correctional facility, negligent in its supervision of the inmates confined therein, negligent in its retention of correction officers and/or other supervisory personnel, all of whom were unfit, inadequately unskilled or motivated, incompetent, inadequately and improperly trained. The defendant is liable to the claimant pursuant to the doctrine of respondeat superior, and all statutory and common law embodiments thereof, or akin thereto.
The defendant, through its agents, servants and/or employees, owed a duty of care to the claimant. The defendant, through its agents, servants and/or employees, breached its duty of care, and as a result of such breach, the claimant was caused to sustain serious personal injuries and damages."
Defendant now moves to dismiss the claim, contending that the claim fails to comply with the pleading requirements of Court of Claims Act § 11 (b). In this particular matter, defendant contends that claimant has failed to sufficiently describe the location of the incident, that claimant has failed to set forth particulars as to how the State failed to provide reasonable supervision, and that claimant has failed to state with sufficient particularity the manner in which the State was negligent in failing to protect him from this assault.
Court of Claims Act § 11 (b) requires that a claim state the time when and place where it arose, the nature of the claim, and the items of damage or injuries claimed to have been sustained. These requirements are jurisdictional in nature and must be strictly complied with in order to properly initiate an action against the State (Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007]; Lepkowski v State of New York, 1 NY3d 201[2003]). The allegations of the claim must be stated with sufficient definiteness " 'to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances' " (Lepkowski, 1 NY3d at 207, quoting Heisler v State of New York, 78 AD2d 767 [4th Dept 1980]).
In this claim, claimant has provided the date and time (April 18, 2014, at approximately 8:45 p.m.) of the assault against him, and has also provided the location where it arose (the main yard at Five Points Correctional Facility). This combination of information regarding time and place of the assault set forth in the claim clearly provides sufficient information to enable the defendant to reasonably conduct an investigation of the claim. Claimant has also set forth in his claim that he sustained serious personal injuries, including facial lacerations and neurological impairment that necessitated hospital and medical treatment.
Finally, with regard to the nature of the claim, claimant has alleged that the State owed claimant a duty of care, and that the State breached its duty, alleging that the State was negligent in the supervision of the inmates confined at the facility, and that it retained "unfit, inadequately skilled or motivated, incompetent, inadequately and improperly trained" correction officers and/or other supervisory personnel, and that claimant was assaulted by another inmate as a result of this alleged negligence. Therefore, the Court finds that claimant has sufficiently alleged a breach of the State's duty of care to provide reasonable supervision which is sufficiently specific "so as not to mislead, deceive or prejudice the rights of the State." (Heisler v State of New York, 78 AD2d at 767).
Since the Court has determined that claimant has adequately complied with the jurisdictional requirements of Section 11 (b), defendant's motion seeking dismissal of the motion must be denied.
Accordingly, it is
ORDERED, that motion No. M-85549 is hereby DENIED.
December 16, 2015
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims