Opinion
# 2015-018-641 Claim No. 124417 Motion No. M-86968
09-08-2015
ALBERTO TORRES v. STATE OF NEW YORK
No Appearance ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire of Counsel
Synopsis
Claim is dismissed - lack of subject matter jurisdiction.
Case information
| UID: | 2015-018-641 |
| Claimant(s): | ALBERTO TORRES |
| Claimant short name: | TORRES |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124417 |
| Motion number(s): | M-86968 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | No Appearance |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | September 8, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings a motion for an Order deeming a document filed as an amended claim as a bill of particulars and dismissing the claim pursuant to CPLR 3211 (a) (2) and (8); or in the alternative, allowing Defendant to amend its answer and treat this as a pre-answer motion to dismiss the claim.
This action, as evident from the current motion, has a convoluted history. On May 23, 2014, Claimant filed a claim with the Clerk of the Court of Claims. From Defendant's submissions, it seems that Claimant served a copy of this claim upon Defendant by certified mail on the same day. Thereafter, Claimant re-served the identical claim on Defendant by certified mail, return receipt requested, on June 16, 2014. On June 24, 2014, Defendant interposed a verified answer to the claim asserting three affirmative defenses, including a lack of subject matter jurisdiction for failure to timely file and serve a claim or a notice of intention within ninety days of the date of accrual. This defense was raised with adequate particularity (Court of Claims Act section 11 [c]).
The answer was filed on June 24, 2014. Defendant's counsel's amended affirmation indicates that the answer was served that same day. The answer was verified on June 24, 2014, but it is dated June 30, 2014.
The claim seeks damages for wrongful confinement and battery. Claimant alleges that as an inmate in the custody of the State, he was taken to an outside hospital to have hemorrhoids removed. Following the surgery, he was moved to several different correctional facilities until finally arriving at Gouverneur Correctional Facility. At Gouverneur, he was assigned to a top bunk. He told the sergeant and the nurse that he could not climb to the top bunk because he was in too much pain from his surgery. As a result, he was placed in the Special Housing Unit (SHU). While in the SHU, this same sergeant kicked Claimant in the behind.
On August 1, 2014, within 40 days after Defendant interposed its answer, Claimant served an "addendum/supplement" to his claim alleging that he was improperly placed in the Food Service Training Program at Livingston Correctional Facility, a program he alleges he successfully completed on January 15, 1995. As a result, he alleges that he was paid only 16 cents an hour for his work in the mess hall when he should have been paid $11.00 per week as a "grade 3 pay." He also alleges that after working for 90 days he did not get paid for 40 hours per week because he had just gotten out of the SHU. He also alleges he was charged $5 for the misbehavior ticket, lost idle pay of $27, incurred $15 to file the Article 78 petition, paid $14 for copies, $25 for postage, and $25 to file this claim. He asserts that his total losses are $507. Defendant did not interpose an answer to this document.
See Uniform Rules for the Court of Claims [22 NYCRR] § 206.7 [b], which allows a party to amend a pleading without leave of Court within 40 days after service of pleading responding to it.
The first issue is to determine how this document Claimant filed with the Clerk of the Court on August 1, 2014, should be treated. Defendant argues that it is a bill of particulars. By statute, a bill of particulars may be requested by either party for a particularization, or copy of the items of the account, alleged in the pleading (CPLR 3041). A bill of particulars is an amplification of the pleading, supplying more details of the claim or defense (Siegel, NY Prac. § 238 at 414 [5th ed. 2011]). Typically, a demand is made by one party to an adverse party requesting what allegations or items in a claim or defense need particularization (CPLR 3042 [a]). Here, Defendant does not assert that it made a demand for a verified bill of particulars, and no demand has been provided. Nor does the document really serve to amplify the claim. It, rather, raises allegations that arose after Claimant was released from the SHU, had his Article 78 proceeding resolved, and, at least in part, appears to have arisen after the incident described in the claim, although not necessarily after the claim was filed and served. Claimant does, however, include damages associated with his time in the SHU.
Whether the change to a pleading is a supplement or an amendment, is a distinction that, although muted, still exists. Although an amended pleading may include almost any change to a pleading, including new theories, corrections of errors, new causes of action, a supplement to a pleading involves the addition of matter that only came into being or to the knowledge of the party after the original pleading was served (Patrick M. Connors, Practice Commentaries, McKinney's Cons. Laws of New York, Book 7B, CPLR C3025:9). A supplement to a pleading does not supercede the pleading unless the order allowing the supplement so directs (Stella v Stella, 92 AD2d 589, 589 [2d Dept 1983]; Mauzer v Lamar Auto Co., 241 AD 684 [2d Dept 1934]). Unlike an amendment, a supplement may only be permitted by leave of Court (CPLR 3025 [b]; 22 NYCRR § 206.7 [b]). CPLR 3025 [a] permits a party to amend once without leave of court within the specified time frame. (see Patrick M. Connors, Practice Commentaries, McKinney's Cons. Laws of New York, Book 7B, CPLR C3025:9).
Here, it seems Claimant intended that the document filed on August 1, 2014, was to supplement his claim, since, not only does he state this at the beginning of the document, but the document also fails to set forth all of the allegations and facts described in the original claim. It also fails to set forth any dates of accrual.
Claimant, however, failed to make the necessary motion for permission to supplement his original claim (CPLR 3025 [b]; 22 NYCRR § 206.7 [b]). Even if Claimant had sought permission to file and serve this supplement, it would have been denied since it fails to set forth any time frame for the alleged wrongdoing, or any basis for judicial relief in the Court of Claims. Claimant has not alleged a violation of any contract, rule or regulation, constitutional provision, or duty which would warrant or allow this Court to grant relief. This Court has limited jurisdiction and may only hear those claims authorized by the constitution or statute (NY Const Art 3 § 19; Court of Claims Act § 8). In order to determine whether Claimant is entitled to additional wage compensation, as alleged, this Court would need to review the Livingston Correctional Facility Food Service Administrator's determination of what level of pay Claimant was entitled to receive for his work in the mess hall. This Court lacks the authority to conduct such a review (see Green v State of New York, 90 AD3d 1577, 1578-1579 [4th Dept 2011]; Fair v State of New York, UID No. 2013-048-532 [Ct Cl, Bruening J., Dec. 23, 2013]).
Treating the August 1, 2014 document as a supplement, means Defendant's failure to file an answer to this document does not automatically constitute a default nor does it waive the previously asserted affirmative defenses (Stella, 92 AD2d at 589). A supplement does not supercede the original pleading (County of Nassau v Cedric Constr. Corp. 100 AD2d 890 [2d Dept 1984]; see also St. Lawrence Explosives, Corp. v Law Bros. Constr. Corp. 170 AD2d 957 [ [4th Dept 1991]). As a supplement to the claim, this motion to dismiss addressed to the original claim, based upon Defendant's Third Affirmative Defense, must be granted. The claim sounding in wrongful confinement and battery should have been filed and served within 90 days of the date of accrual. Claimant alleges in the claim that the date of accrual was June 21, 2013. Although typically a wrongful confinement claim, as a species of false imprisonment, would accrue on the date confinement ends (see Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]). Claimant has not provided that date. Using the June 21, 2013, as the date of accrual, the filing of the claim on June 2, 2014, and its service on June 16, 2014, is untimely (see Court of Claims Act § 10 [3] and 10 [3-b]).
Clearly, the better practice would have been to eliminate any issue when it isn't clear whether the newly filed and served document is a supplement or an amended pleading and submit a response to it, thereby undoubtedly preserving all raised defenses and rights.
Yet, whether the document filed on August 1, 2014, is a supplement or an amendment to the original claim, it is a distinction that does not change the result. Even if the August 1, 2014 document was to be considered an amended claim, it, too, would be dismissed. It would be an amendment as of right, and take the place of the originally filed claim so Defendant's failure to answer could be found to be a default and waiver of its previously asserted defenses (St. Lawrence Explosives Corp. 170 AD2d 957; Court of Claims Act § 11 [c]). Nonetheless, the amended claim would still have to be dismissed for lack of subject matter jurisdiction. Treated as an amended claim, the document filed August 1, 2014, does not meet the requirements of Court of Claims Act section 11 (b), as it fails to not set forth any time frame for when the alleged wrongdoing occurred. The date and time of accrual are essential to determine not only the applicability of the statute of limitations but also the amount of damages (Harper v State of New York, 34 AD2d 865 [3d Dept 1970]). Unlike the defense of untimeliness, which is an objection that can be waived, the requirements of section 11 (b) are mandatory pleading requirements that are "substantive conditions upon the State's waiver of sovereign immunity" and the failure to comply results in the claim being jurisdictionally defective (Lepkowski v State of New York, 1 NY3d 201, 207 [2003]; Kolnacki v State of New York, 8 NY3d 277, 281 [2007]). Such a defect cannot be waived and may be raised at any time, even sua sponte (Green, at 90 AD3d at 1577, 1578; Czynski v State of New York, 53 AD3d 881 [3d Dept 2008]).
Accordingly, based upon the foregoing Defendant's motion is GRANTED and the claim is DISMISSED.
September 8, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affirmation of Thomas Trace, Esquire, in support, with exhibits attached thereto.