Opinion
# 2016-016-013 Claim No. 126960 Motion No. M-87791
02-08-2016
DEWITT McGRIFF v. THE STATE OF NEW YORK
Dewitt McGriff, Pro se Eric T. Schneiderman, Attorney General By: Douglas H. Squire, AAG
Synopsis
Case information
| UID: | 2016-016-013 |
| Claimant(s): | DEWITT McGRIFF |
| Claimant short name: | McGRIFF |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126960 |
| Motion number(s): | M-87791 |
| Cross-motion number(s): | |
| Judge: | Alan C. Marin |
| Claimant's attorney: | Dewitt McGriff, Pro se |
| Defendant's attorney: | Eric T. Schneiderman, Attorney General By: Douglas H. Squire, AAG |
| Third-party defendant's attorney: | |
| Signature date: | February 8, 2016 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Dewitt McGriff moves here for summary judgement and to strike the affirmative defenses that the defendant had asserted against his claim arising from a shut off of water (and electricity) at A-North Block of the Sullivan Correctional Facility on December 30, 2014. For its part, the defendant opposes claimant's motion.
Mr. McGriff alleges that the water and power were off for about eight hours, during which time he was unable to wash before his prayers. Moreover, claimant could not drink the water he needed for his "borderline" diabetic condition and could not flush the toilet in his cell.
Claimant objects to the defendant's four affirmative defenses, which cover: the failure to state a cause of action; that the claim is insufficiently detailed; contributory negligence; and a lack of vicarious responsibility.
See section 11(b) of the Court of Claims Act.
Affirmative defenses are not dispositive, and like the allegations in a claim, are assertions made by a party. To the extent they are raised at trial, defendant must prove their validity, and Mr. McGriff will then have the opportunity to challenge the defenses raised by the State of New York.
The striking of affirmative defenses is generally not warranted in the absence of prejudice to claimant or where the claimant fails "to conclusively show that the defenses lacked merit" (Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]). Neither basis has been demonstrated here. A defendant is "entitled to every reasonable intendment of its pleading, which is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed" [citations omitted]" (Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743 [2d Dept 2008]).
5 Weinstein-Korn-Miller, NY Civ Prac ¶ 3018.14 at 30-432.
Substantively, the Court of Claims does not have jurisdiction over a claim that religious freedom has been violated; a section 1983 civil rights case can only be brought in state supreme or federal court. This Court has limited jurisdiction over constitutional torts (Brown v State of New York, 89 NY2d 172 [1966]; Bullard v State of New York, 307 AD2d 676 (3d Dept 2003).
Consistent with the security needs of the correctional facility, inmates have the right to practice their religion (Correction Law § 610) and the Rules of the State Commission of Correction [(9 NYCRR part 7024]). This includes having a place to worship, being allowed to observe religious dietary laws and to wear religious medals (9 NYCRR §§ 7024.2, 7024.6; 7024.8).
The issue touching upon religious practice is whether the shut down of water was a negligent interference with that practice.
See for example, Matter of Rivera v Smith, 63 NY2d 501 (1984); Matter of Cancel v Goord, 278 AD2d 321 (2d Dept 2000); and Jackson v Coughlin, 204 AD2d 939 (3d Dept 1994).
Furthermore, if turning off the water can be proven to have been a negligent act, such could also causally implicate its other alleged effects on claimant. In sum, there are material facts in dispute, and therefore Mr. McGriff's motion for summary judgment motion cannot succeed.
In view of the foregoing, and having considered the submissions of the parties, IT IS ORDERED that motion No. M-87791 is denied.
The following were reviewed: from claimant - - a Notice of Motion to Strike Affirmative Defenses and Summary Judgment, and an Affidavit in Support of Motion to Strike Affirmative Defenses and Summary Judgment; from defendant - - an Affirmation in Opposition to Motion to Dismiss Affirmative Defenses & Motion for Summary Judgment (with exhibit A). --------
February 8, 2016
New York, New York
Alan C. Marin
Judge of the Court of Claims