Opinion
# 2012-039-299 Claim No. 119815 Motion No. M-80892 Cross-Motion No. CM-80893
04-20-2012
WARREN v. STATE OF NEW YORK
Synopsis
Defendant's motion to dismiss the claim is granted. Claimant has failed to state a claim for intentional infliction of emotional distress or negligent supervision. Claimant has stated his intent to withdraw his remaining cause of action and it is nonetheless without merit. Claimant's motion to strike defendant's affirmative defense is denied as unnecessary. Case information
UID: 2012-039-299 Claimant(s): GREGORY WARREN Claimant short name: WARREN Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119815 Motion number(s): M-80892 Cross-motion number(s): CM-80893 Judge: James H. Ferreira Claimant's attorney: Gregory Warren, pro se Hon. Eric T. Schneiderman Defendant's attorney: Attorney General of the State of New York By: Thomas Trace, of Counsel Third-party defendant's attorney: Signature date: April 20, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, an inmate at the Mohawk Correctional Facility in Rome, New York, seeks damages for alleged wrongful conduct committed by employees of the Department of Corrections and Community Supervision (hereinafter DOCCS) during his incarceration.In his first cause of action, claimant alleges that, in May 2010, prison officials moved him "for security reasons" to a new cell that had a design that rendered him unable to "directly access his legal material stored in his night-stand" from his wheelchair (Claim ¶¶ 3, 16). He asserts that the move constituted harassment and that DOCCS was negligent in managing its employees and permitting the harassment to occur. In his second cause of action, claimant alleges that prison officials wrongfully changed his prison records to reflect that his conviction for criminal possession of a weapon in the third degree pursuant to Penal Law § 265.02 (4) is a violent felony offense - although it is not listed as a violent felony offense in Penal Law § 70.02 - and thereafter refused to correct this error. Claimant contends that, as a result of this error, he was wrongfully required to attend aggression replacement training.
Effective April 1, 2011, the Department of Correctional Services was merged with the Division of Parole to create DOCCS.
Issue was joined, and defendant now moves for an order dismissing the claim pursuant to CPLR 3211 (a) (2), (7) and (8) on the grounds that the Court lacks jurisdiction over the claim and the claim fails to state a cause of action. Claimant opposes the motion and cross-moves pursuant to CPLR 3211 (b) for an order striking the affirmative defense set forth in defendant's answer. Defendant has not submitted papers in opposition to claimant's cross motion.
Initially, the Court denies claimant's cross motion. CPLR 3211 (b) provides that "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." Defendant raised one affirmative defense in its answer, namely that the claim fails to state a cause of action (Answer ¶ 5). It has been held that "[a] defense of failure to state a cause of action is at most 'harmless surplusage' which need not be struck in order to protect a plaintiff's interests" (Dubois v Vanderwalker, 245 AD2d 758, 760 [1997], quoting Pump v Anchor Motor Frgt., 138 AD2d 849, 851 [1988]; see Butler v Catinella, 58 AD3d 145, 150 [2008]). Thus, claimant's motion to strike the defense is denied as unnecessary (see Pump v Anchor Motor Frgt., 138 AD2d at 851; Suarez v State of New York, 14 Misc 3d 1230 [A] [Ct Cl 2006], affd 60 AD3d 1243 [2009]).
Turning to defendant's motion to dismiss, the Court concludes that, for the reasons set forth below, this claim must be dismissed pursuant to CPLR 3211 (a) (7) for failure to state a cause of action.In considering a motion to dismiss for failure to state a cause of action, the Court must liberally construe the claim, assume claimant's allegations to be true and afford claimant the benefit of "every favorable inference" (Trump on the Ocean, LLC v State of New York, 79 AD3d 1325,1326 [2010], lv dismissed and lv denied 17 NY3d 770 [2011]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The inquiry before the Court is "'whether the facts as alleged [in the claim] fit within any cognizable legal theory'" (Justice v State of New York, 66 AD3d 1182, 1183 [2009], quoting Leon v Martinez, 84 NY2d at 87-88; see IMS Engineers-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [2008]).
In support of its motion to dismiss, defendant primarily contends that the claim should be dismissed because the prison determinations challenged by claimant are not reviewable in the Court of Claims. The Court views the claim as seeking damages for alleged wrongful actions of DOCCS employees rather than review of any administrative determinations of DOCCS. Thus, the Court declines to dismiss the claim for lack of subject matter jurisdiction (see generally Green v State of New York, 90 AD3d 1577, 1578-1579 [2011], lv dismissed and lv denied 18 NY3d 901 [2012]; compare Matter of Salahuddin v Connell, 53 AD3d 898, 899-900 [2008]).
Viewed liberally, this claim fails to state a cause of action upon which relief may be granted. Claimant's first cause of action essentially alleges that prison officials harassed him by moving him to a new room and that DOCCS was negligent by permitting and/or failing to prevent the harassment. Claimant's allegation of harassment is the functional equivalent of an action alleging intentional inflection of emotional harm,and "public policy prohibits the maintenance of a suit against the State for intentional infliction of emotional distress" (Brown v State of New York, 125 AD2d 750, 752 [1986], lv dismissed 70 NY2d 747 [1987]; see Lynn v State of New York, 33 AD3d 673, 675 [2006]; Kidd v State of New York, UID # 2003-013-030, Claim No. None., Motion No. M-67198, Patti, J. [Nov. 19, 2003]). In addition, claimant has failed to state a cause of action sounding in negligent supervision, as he makes no assertion that "defendant knew or should have known of its employee's propensity to engage in the conduct that caused [claimant's] injuries" (Gray v Schenectady City School Dist., 86 AD3d 771, 773 [2011]; see Kinge v State of New York, 79 AD3d 1473, 1475-1476 [2010]). Consequently, claimant has failed to state a claim for intentional infliction of emotional distress or negligent supervision.
New York does not recognize a common-law cause of action to recover damages for harassment (see Monreal v New York State Dept. of Health, 38 AD3d 1118, 1119-1120 [2007]).
Additionally, to the extent that claimant seeks damages arising from the decision of prison officials to move him to a new room, defendant is entitled to immunity from " 'liability for the injurious consequences of official action when [that] action involves the exercise of discretion or expert judgment in policy matters, and is not exclusively ministerial' " (Pryor v State of New York, 92 AD3d 1047, 1048 [2012], quoting Metz v State of New York, 86 AD3d 748, 750 [2011] [internal quotations omitted]; see Lapidus v State of New York, 57 AD3d 83, 91 [2008]). "This immunity . . . is absolute when the action involves the conscious exercise of discretion of a judicial or quasi-judicial nature" (Arteaga v State of New York, 72 NY2d 212, 216 [1988]; see Best v State of New York, 264 AD2d 404, 404 [1999]). DOCCS has been granted broad discretion to formulate and implement policies relating to "the safety, security and control of correctional facilities and the maintenance of order therein" (Correction Law § 137 [2]), and "[t]he discretionary determinations of correction officials in fulfilling their responsibility for the safety, security and control of correctional facilities has been recognized as quasi-judicial in nature, and subject to absolute immunity where conducted in compliance with governing statutes and regulations" (Carlson v State of New York, 34 Misc 3d 242, 251 [Ct Cl 2011]; see Arteaga v State of New York, 72 NY2d at 217-221). Here, in the Court's view, the decision to move claimant to a different cell "for security reasons" was a discretionary decision made in furtherance of DOCCS' duty to maintain the safety and security of correctional facilities and is entitled to absolute immunity in the absence of any allegation that it was made in violation of a governing statute or regulation (see Correction Law § 137 [2]; Pryor v State of New York, 92 AD3d at 1048; Holloway v State of New York, 285 AD2d 765, 766 [2001]). Claimant's assertion that the officer who moved him "did not have the authority" to do so is insufficient (Claim ¶ 13). Thus, claimant's first cause of action is dismissed.
The Court notes that, in opposition to defendant's motion, claimant asserts that "substantial evidence on the issue [of claimant's move to another cell] will derive from disclosure" and requests that the Court deny the motion or grant a continuance pursuant to CPLR 3211 (d) (Affirmation in Support of Motion in Opposition to Motion to Dismiss ¶ 17). Pursuant to CPLR 3211 (d), the Court has discretion to deny a motion to dismiss or order a continuance if "it appear[s] from affidavits submitted in opposition . . . that facts essential to justify opposition may exist but cannot then be stated" (CPLR 3211 [d]; see Herzog v Town of Thompson, 216 AD2d 801, 803 [1995]). However, claimant's speculative assertion that discovery will reveal substantial evidence with respect to this cause of action is insufficient to justify relief pursuant to CPLR 3211 (d) (see Beesmer v Besicorp Dev., Inc., 72 AD3d 1460, 1461 [2010]; Silverstein v Westminster House Owners, Inc., 50 AD3d 257, 258 [2008]).
As to claimant's second cause of action, the Court notes that Penal Law § 265.02 (4) was repealed in 2006 - after claimant's conviction - and transferred to Penal Law § 265.03 (3) (see L 2006, ch 742, § 1; Penal Law § 265.03 [3]). Penal Law former § 265.02 (4) had been designed as a violent felony offense (see Penal Law former § 70.02 [1] [c]; People v Green, 62 AD3d 1024, 1025 [2009], lv denied 13 NY3d 744 [2009]; People v Goston, 9 AD3d 905, 907 [2004], lv denied 3 NY3d 706 [2004]). Thus, inasmuch as claimant's records reflect that claimant's conviction for criminal possession of a weapon in the third degree pursuant to Penal Law § 265.02 (4) is a violent felony offense, they were not incorrect, and claimant's second cause of action is without merit. In a sworn affidavit in opposition to defendant's motion, claimant explains that he was not aware of the change in the law, as defendants "gave [him] no reason to believe that there was any legitimacy in delineating [Penal Law § 265.02 (4)] a [violent felony offense] and did not have or articulate any reason prior to the instituting of this action to believe so" (Affidavit in Support of Motion in Opposition to Motion to Dismiss ¶ 21). Although claimant does not concede that Penal Law § 265.02 (4) is a violent felony offense, he states that he is withdrawing the second cause of action (id. ¶ 22). Given the clear lack of merit of this cause of action and claimant's apparent intent to withdraw it, the Court dismisses claimant's second cause of action.
Based upon the foregoing, it is ordered that Motion No. M-80892 is granted, CM-80893 is denied and the claim is dismissed.
April 20, 2012
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion to Dismiss dated July 6, 2011;
2. Affirmation in Support of Motion to Dismiss by Thomas Trace, Senior Attorney, dated July 6, 2011 and exhibits attached thereto;
3. Notice of Motion in Opposition to Defendant's Motion to Dismiss dated August 1, 2011; and
4. Affidavit in Support of Motion in Opposition sworn to on August 1, 2011 and exhibits attached thereto.