Opinion
# 2011-015-248 Claim No. 119353 Motion No. M-79762
07-27-2011
DAVID LORET v. THE STATE OF NEW YORK
Synopsis
Pro se inmate's motion to dismiss affirmative defenses was granted in part and denied in part. Case information
UID: 2011-015-248 Claimant(s): DAVID LORET Claimant short name: LORET Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119353 Motion number(s): M-79762 Cross-motion number(s): Judge: FRANCIS T. COLLINS Claimant's attorney: David Loret, Pro Se Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: By: Thomas R. Monjeau, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: July 27, 2011 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, a pro se inmate, moves to dismiss the defenses asserted in the defendant's answer pursuant to CPLR 3211 (b).
The claimant was found guilty of stealing on October 29, 2009, following a Tier III disciplinary hearing and sentenced to a 30-day period of punitive confinement. He unsuccessfully pursued available administrative remedies and thereafter commenced an article 78 proceeding on April 10, 2010 (Claim, ¶ 8). On December 30, 2010 the Appellate Division, Third Department, annulled the determination of the Tier III Hearing Officer, finding that "substantial evidence does not support the determination of guilt" (Matter of Loret v Bezio, 79 AD3d 1561 [2010]). The instant claim seeks damages for "wrongful excessive confinement" arising from the punitive confinement (Claim, ¶ 2).
The answer served by the defendant February 9, 2011 raised nine defenses to the claim. In response to the instant motion, defendant withdrew its fifth, sixth and eighth defenses and opposes dismissal of the remaining defenses on a variety of grounds.
To succeed on a motion to dismiss defenses pursuant to CPLR 3211 (b), the claimant bears the burden of demonstrating the defenses lack merit as a matter of law (Suarez v State of New York, 60 AD3d 1243 [2009]; Vita v New York Waste Servs., LLC, 34 AD3d 559 [2006]; Santilli v Allstate Ins. Co., 19 AD3d 1031 [2005]). For purposes of such a motion, "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" (Grunder v Recckio, 138 AD2d 923 [1988]). "If there is doubt as to the availability of a defense, it should not be dismissed" (Pellegrino v Millard Fillmore Hosp., 140 AD2d 954, 955 [1988] [internal quotation marks and citation omitted]).
Defendant's first defense alleges the claim fails to state a cause of action. It has been held that "pleading the defense of failure to state a cause of action is unnecessary, constitutes 'harmless surplusage,' and that a motion by the plaintiff to strike the same should be denied" (Butler v Catinella, 58 AD3d 145, 150 [2008], quoting Citibank (S.D.) v Coughlin, 274 AD2d 658, 659-660 [2000]; see also Dubois v Vanderwalker, 245 AD2d 758 [1997]). Accordingly, claimant's motion to dismiss the defendant's first defense is denied.
The defendant's second affirmative defense alleges this Court "lacks subject matter jurisdiction over the claim and personal jurisdiction over the defendant, the State of New York, as the claim is untimely in that neither the claim nor a notice of intention was served within ninety (90) days of the accrual of the claim as required by Court of Claims Act Sections 10 (3) and 11" (claimant's Exhibit C). Defendant argues in opposition to the dismissal of this defense that claimant's failure to allege the date the claim accrued renders a determination regarding the timeliness of the claim impossible. However, the claim clearly alleges that the claimant was confined for a period of 30 days as the result of the disciplinary hearing on October 29, 2009 and a claim for either false imprisonment or wrongful confinement accrues when the confinement terminates (Bumbury v City of New York, 62 AD3d 621 [2009]; Charnis v Shohet, 2 AD3d 663 [2003]; Jones v Town of Johnstown, 41 AD2d 866 [1973]; Ramirez v State of New York, 171 Misc 2d 677 [Ct Cl 1997]). Court of Claims Act § 10 (3-b) requires that a claim or notice of intention to file a claim for an intentional tort be filed and served within 90 days after accrual. Claimant failed to meet his burden of establishing that the instant claim, filed on January 12, 2011 and served on January 13, 2011, was timely. Claimant's motion to dismiss defendant's second affirmative defense is therefore denied.
Notably, a claim for wrongful confinement is generally considered an intentional tort controlled by the limitation period set forth in Court of Claims Act § 10 (3-b), not § 10 (3) as alleged here.
Defendant's third defense alleges that "[t]o the extent the claimant alleges civil rights violations, the Court lacks subject matter jurisdiction over the claim as the claim fails to state a cause of action against the defendant, The State of New York" (claimant's Exhibit C). This defense, though inartfully drafted, appears to state the well-settled rule that the Court of Claims lacks jurisdiction over claims alleging violations of the Federal Constitution (Shelton v New York State Liq. Auth., 61 AD3d 1145 [2009]; Will v Michigan Dept. of State Police, 491 US 58, 71 [1989]). As to the third defense, claimant has failed to establish the defense is lacking in merit as a matter of law.
Defendant's fourth defense asserts the actions of its agents or employees were "privileged as being judicial, quasi-judicial or discretionary determinations . . . and therefore defendant is immune from any liability for such actions" (claimant's Exhibit C). It is well-settled that conduct of correction employees taken in furtherance of authorized disciplinary measures is quasi-judicial in nature and entitled to absolute immunity (Arteaga v State of New York, 72 NY2d 212 [1988]). Only where employees act "beyond their authority or in violation of the governing rules and regulations" is the shield of absolute immunity lost (Id. at 220). Here, claimant failed to establish a violation of a non-discretionary rule or regulation so as to defeat defendant's assertion of immunity (id.; Holloway v State of New York, 285 AD2d 765, 766 [2001]).
Defendant's seventh defense alleges that "[t]he claim fails to comply with Section 11 of the Court of Claims Act by failing to state the specific time when and date of the accrual of the cause of action and, therefore, there is no proper claim over which the Court has jurisdiction" (claimant's Exhibit C, ¶ 10). Court of Claims Act § 11 (b) requires that the claim "state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed." Contrary to defendant's assertion, the claim herein sufficiently sets forth the time when and the place where the claim arose. The defendant's seventh defense asserted in its answer is therefore dismissed.
The defendant's ninth defense alleges "[w]ith respect to the exhibits annexed to the notice of intention and/or to the claim, [the defendant] objects to the filing of said exhibits with the Court for the reason that it is improper to file said exhibits or to attempt to make them a part of the record in this claim" (claimant's Exhibit C, ¶ 12). The ninth defense is not an appropriate affirmative defense and is, therefore, dismissed (see CPLR 3018 [b]).
Based on the foregoing, claimant's motion is granted to the extent of dismissing the seventh and ninth defenses asserted in the defendant's answer and is otherwise denied.
July 27, 2011
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Notice of motion dated March 30, 2011;
2. Affidavit of David Loret sworn to March 30, 2011 with exhibits;
3. Affirmation of Thomas R. Monjeau dated May 12, 2011 with exhibit.