Opinion
# 2017-040-030 Claim No. 127618 Motion No. M-89224 Cross-Motion No. CM-89397
03-01-2017
ALEXANDER MITCHELL, DIN: 07-A-5187 v. THE STATE OF NEW YORK
Alexander Mitchell, DIN: 07-A-5187, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG
Synopsis
Claimant’s Motion to strike Answer and for summary judgment denied. State’s Cross-Motion to to dismiss defamation as barred by statute of limitations granted. Cross-Motion to dismiss negligence cause of action denied.
Case information
| UID: | 2017-040-030 |
| Claimant(s): | ALEXANDER MITCHELL, DIN: 07-A-5187 |
| Claimant short name: | MITCHELL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127618 |
| Motion number(s): | M-89224 |
| Cross-motion number(s): | CM-89397 |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant’s attorney: | Alexander Mitchell, DIN: 07-A-5187, Pro Se |
|---|---|
| Defendant’s attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG |
| Third-party defendant’s attorney: | |
| Signature date: | March 1, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimant’s Motion to strike the State’s Answer and for summary judgment is denied, and Defendant’s Cross-Motion to dismiss on the basis that the defamation cause of action is barred by the statute of limitations and fails to meet the pleading requirements of CPLR 3016(a) is granted, and that the negligence cause of action fails to state a valid cause of action (CPLR 3211(a)[7]) is denied.
This pro se Claim, which was filed with the Clerk of the Court on March 7, 2016, asserts that, on February 26, 2015, Claimant was an inmate at Eastern NY Correctional Facility (hereinafter, “Eastern”) and was about to participate in Defendant’s Family Reunion Program (hereinafter, “FRP”) with his wife; when she arrived at Eastern, an Eastern nurse gave her a letter, which indicated that Claimant had a sexually transmitted disease (hereinafter, “STD”) (Claim, ¶ 4). It is further alleged that, a few hours later, the nurse and the FRP Coordinator came to the FRP site and told both Claimant and his wife that Claimant did not have an STD and that his wife had been misinformed (id., ¶ 5). Claimant asserts that the State’s negligence caused irreparable damage to his marriage and that the “act of malfeasance was slanderous” (id.) and his character was defamed (id., ¶ 14). Claimant asserts that he has been psychologically damaged (id., ¶ 11).
Defendant seeks dismissal of the defamation cause of action on the basis that it is barred by the statute of limitations and fails to meet the pleading requirements of CPLR 3016(a), which requires that, in an action for libel or slander, the particular words complained of shall be set forth in the Claim.
In his affirmation submitted in support of the Cross-Motion, Defense counsel asserts that, on March 18, 2015, Claimant served a Notice of Intention to File a Claim upon the Attorney General by certified mail, return receipt requested (Affirmation of Michael T. Krenrich, Esq., Assistant Attorney General [hereinafter, “Krenrich Affirmation”], ¶ 3 and Ex. A attached thereto). Counsel further states that, on March 7, 2016, Claimant served the Claim upon the Attorney General (Krenrich Affirmation, ¶ 4 and Ex. B attached). CPLR § 215(3) provides that an action to recover damages for libel or slander is an intentional tort and must be commenced within one year of accrual (Firth v State of New York, 287 AD2d 771, 771 [3d Dept 2001], affd 98 NY2d 365 [2002]).
Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in the Court of Claims Act, either personally or by certified mail, return receipt requested. Pursuant to Court of Claims Act provisions applicable to intentional torts (Court of Claims Act § 10 [3-b]), Claimant was required to file and serve his claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, any Claim for the intentional tort was to be filed and served upon the Attorney General within one year of accrual (Court of Claims Act § 10[3-b]). The statutory requirements conditioning suit must be strictly construed (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003]).
Here, the Notice of Intention was timely and properly served upon Defendant and, thus, extended Claimant’s time to serve and file a Claim asserting a cause of action for defamation to one year from accrual of the cause of action. Claimant asserts in his Claim that the action accrued on February 26, 2015. Therefore, the timely and proper service of the Notice of Intention extended Claimant’s time to serve the Claim relating to the defamation cause of action to February 26, 2016. Claimant did not serve and file his Claim until March 7, 2016. Therefore, the State’s Cross-Motion is granted to the extent the cause of action asserting defamation is dismissed as untimely pursuant to Court of Claims Act § 10(3-b) and CPLR 215(3).
Even if the defamation cause of action had been timely served and filed, it would still be dismissed. Pursuant to CPLR 3016(a), in an action for defamation, the particular words complained of must be set forth in the complaint. A failure to state the specific defamatory words in a claim is fatal to a cause of action for libel or slander, and it must be dismissed for failure to state a cause of action (Martin v Hayes, 105 AD3d 1291, 1293 [3d Dept 2013]). Here, the Claim fails to set forth the particular words which Claimant alleges were defamatory and just states that it was indicated he had a sexually transmitted disease. This is not sufficient under the pleading requirements set forth in CPLR § 3016(a).
The Court now turns to that portion of Defendant’s Cross-Motion seeking to dismiss the negligence cause of action pursuant to CPLR 3211(a)(7) for failure to state a cause of action. Defendant asserts that, to the extent Claimant’s cause of action can be read as one for negligent infliction of emotional distress, it lacks merit as the Claim fails to allege conduct that endangered Claimant’s physical safety or caused him to fear for his physical safety (Krenrich Affirmation, ¶¶ 9-11; see Moore v Melesky, 14 AD3d 757 [3d Dept 2005]).
On a motion to dismiss a claim pursuant to CPLR 3211(a)(7), the court must “accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Dee v Rakower, 112 AD3d 204, 208 [2d Dept 2013]). Thus, the determination is made by reference to whether “the proponent of the pleading has a cause of action, not whether he has stated one” (id. at 88 [quotation marks and citations omitted]).
As succinctly explained in Topor v State of New York, 176 Misc 3d 177, 180 (Ct Cl 1997):
The law has long been settled that a claimant can recover for emotional trauma even in the absence of a physical injury (Battalla v State of New York, 10 NY2d 237 [1961]; Scannapieco v New York City Tr. Auth., 200 AD2d 410, 412 [1st Dept 1994] … [T]here is no requirement that a claimant seeking such recovery must be in physical fear of his or her own safety. That point is made clear by a review of pertinent Court of Appeals rulings. In the case of Martinez v Long Is. Jewish Hillside Med. Ctr. (70 NY2d 697 [1987]), an abortion was performed on the plaintiff based on the erroneous advice of her physician that the baby would be born with a congenital birth defect. The plaintiff sued for emotional harm and the Court of Appeals held that “where there is a breach of a duty owed by defendant to plaintiff, the breach of that duty resulting directly in emotional harm is actionable” (supra at 699). [Similarly, i]n the case of Johnson v State of New York (37 NY2d 378, 379-380 [1975]), the Court of Appeals permitted the daughter of a hospital patient to recover for “emotional harm sustained by her as a result of negligent misinformation given by the hospital that her mother had died.” In neither of the foregoing cases was the plaintiff in fear for her own physical safety.
Here, the Court finds that Claimant has stated a cause of action for negligent infliction of emotional distress. The Court does note that “New York courts have been reluctant to recognize claims grounded in negligence when the damages are solely emotional” (Nadal v Jaramillo, 102 AD3d 843, 844 [2d Dept 2013]; see Lauer v City of New York, 95 NY2d 95, 103, n. 1 [2000]), but it remains to be seen whether or not Claimant can establish that the behavior of the State’s employees was “so extreme and outrageous as to be considered atrocious and utterly intolerable” (Moore v Melesky, supra at 761 [internal quotations and citations omitted]), or was so unreasonable as to endanger his physical safety or cause him to fear for his safety (Nicholson v A. Anastasio & Sons Trucking Co., Inc., 77 AD3d 1330, 1331 [4th Dept 2010]). Thus, that portion of the State’s Cross-Motion which seeks to dismiss the cause of action for negligent infliction of emotional distress is denied and, to the extent Claimant has argued negligent infliction of emotional distress, or the Claim can be read to assert some other species of tort, that cause of action or those cause(s) of action survive(s).
The Court now turns to Claimant’s Motion to strike the State’s Answer and for summary judgment. The State’s Answer to the Claim, which was filed in the office of the Clerk of the Court on April 18, 2016, denies knowledge or information sufficient to form a belief as to the majority of the allegations contained in the Claim, and denies the rest. The State also asserts five defenses in its Answer.
CPLR 3018 relates to responsive pleadings. Subdivision (a) refers to denials and states that “[a] party shall deny those statements known or believed by him to be untrue. He shall specify those statements as to the truth of which he lacks knowledge or information sufficient to form a belief and this shall have the effect of a denial.”
According to Professor Patrick M. Connors, when an allegation is denied, the allegation must be proved by the party pleading it (see Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3018:2, at 299). The burden is thus upon Claimant to establish the allegations that were denied in the State’s Answer.
A motion to dismiss defenses may be made on the ground that a defense is not stated or has no merit (CPLR 3211[b]). “[A]n affirmative defense should not be dismissed if there is any doubt as to its availability” (Thy Tran v Avis Rent A Car, 289 AD2d 731, 732 [3d Dept 2001]; see Nahrebeski v Molnar, 286 AD2d 891 [4th Dept 2001]). “It is well settled that ‘[o]n a motion to dismiss a defense pursuant to CPLR 3211(b), all of defendant’s allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof’ ” (Capital Tel. Co. v Motorola Communications and Elecs., 208 AD2d 1150, 1150 [3d Dept 1994], quoting Grunder v Recckio, 138 AD2d 923, 923 [4th Dept 1988]; see Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]). Moreover, the movant “[bears] the burden of demonstrating that those defenses [are] without merit as a matter of law” (Vita v New York Waste Services, LLC, 34 AD3d 559, 559 [2d Dept 2006]; see Suarez v State of New York, 14 Misc 3d 1230[A] [Ct Cl 2006], affd 60 AD3d 1243, supra).
The Court has reviewed the five defenses raised by Defendant. Claimant has not addressed each defense separately and asserts, in only general and conclusory fashion, that no defense is stated. Each defense must stand pending a factual determination of the issue raised in each defense. The portion of Claimant’s motion to strike the Answer, therefore, is denied.
The Court now turns to the portion of the Motion that seeks summary judgment. Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley’s Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). CPLR 3212(b) also requires that the motion be supported by “available proof.” “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). “Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
The Court finds Claimant has failed to establish a duty was owed to him by Defendant, that there was breach of that duty which constituted either negligent infliction of emotional distress, or some other species of tort. Therefore, based upon the foregoing, that portion of Claimant’s Motion for summary judgment in his favor is denied.
March 1, 2017
Albany , New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Claimant’s Motion to strike the Answer and for summary judgment and Defendant’s Cross-Motion to dismiss:
| Papers Numbered | |
| Notice of Motion, Affidavit in SupportExhibits attached | 1 |
| Notice of Cross-Motion, AffirmationExhibits attached | 2 |
| Claimant’s Reply | 3 |
| Filed Papers: Claim, Answer |