Opinion
# 2014-010-021 Claim No. 123890 Motion No. M-84678
04-02-2014
KENNETH SMITH v. THE STATE OF NEW YORK
KENNETH SMITH Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Terrance K. DeRosa, Assistant Attorney General
Synopsis Defendant's motion to dismiss granted, failed to plead factual allegations of qualified as having a disability under ADA. Case information UID: 2014-010-021 Claimant(s): KENNETH SMITH Claimant short name: SMITH Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 123890 Motion number(s): M-84678 Cross-motion number(s): Judge: Terry Jane Ruderman Claimant's attorney: KENNETH SMITH Pro Se Defendant's attorney: HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Terrance K. DeRosa, Assistant Attorney General Third-party defendant's attorney: Signature date: City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision The following papers numbered 1-4 were read and considered by the Court on defendant's motion to dismiss Claim No. 123890: Notice of Motion, Attorney's Supporting Affirmation and Exhibit.........................1 Claimant's Opposition to Defendant's Motion to Dismiss and Claimant's Request for Summary Judgment and Exhibits.............................................................................2 Defendant's Reply and Exhibit.................................................................................3 Claimant's Sur-Reply ..................................................................................................4 Defendant timely brought this pre-answer motion to dismiss Claim No. 123890 for lack of subject matter jurisdiction and failure to allege sufficient facts to state a cause of action (CPLR ?3211). Claimant opposes the motion and seeks summary judgment in his favor. To the extent that the claim alleges constitutional violations, this Court does not have subject matter jurisdiction over federal constitutional claims (see Carver v State of New York, 79 AD3d 1393, 1395 [3d Dept 2010]; Lyles v State of New York, 2 AD3d 694, 696 [2d Dept 2003], affd on other grounds 3 NY3d 396 [2004]) and a state constitutional claim will not be recognized where, as here, there is an available remedy at common-law (see Brown v State of New York, 89 NY2d 172 [1996]; Lyles, 2 AD3d at 696). Accordingly, defendant's motion to dismiss these causes of action is GRANTED. To the extent that the claim alleges violations of the American with Disabilities Act (ADA), these claims warrant dismissal because claimant's rambling allegations are not sufficiently decipherable so as to meet the pleading requirements of Court of Claims Act ?11 (b) (see Triani v State of New York, 44 AD3d 1032 [2d Dept 2007]). Indeed, claimant has failed to plead specific factual allegations that he is a qualified individual with a disability under the ADA and that on dates certain he was excluded or denied benefits of specific services, programs or activities by reason of his disability or was subjected to discrimination (see Smith v Masterson, 353 Fed Appx 505, 507 [2nd Cir 2009] [claimant's ADA claim dismissed because he did not demonstrate a disability]; Carlson v State of New York, 34 Misc 3d 242, 250-251 [Ct Cl 2011] [claimant failed to cohesively recite factual allegations in support of relief under ADA]). Upon review of all the papers submitted, the Court finds that summary judgment in favor of claimant is unfounded; rather the claim warrants dismissal and all other requests for relief by claimant are DENIED. ACCORDINGLY, CLAIM NO. 123890 IS HEREBY DISMISSED. April 2, 2014 White Plains, New York Terry Jane Ruderman Judge of the Court of Claims . While claimant's Sur-Reply was filed after the return date, nonetheless, the Court considered the papers.