Filed Papers: Claim, Answer 6, 7
Claimant states that in June 2001 he was housed at the Chateaugay Alcohol
Substance Abuse Comprehensive Treatment Center (hereinafter Chateaugay ASACTC)
in the Town of Chateaugay, Franklin County. Chateaugay ASACTC is a facility
administered by the Department of Correctional Services (hereinafter DOCS)
(see, Correction Law § 2; 7 NYCRR 100.126). He alleges that,
as part of the treatment program at Chateaugay ASACTC, he was required to learn
"the Serenity Prayer" and "the 12 steps." Claimant states that aspects of the
12-step regimen were contrary to his Islamic religious beliefs and therefore he
filed an institutional grievance. According to claimant, the Superintendent of
Chateaugay ASACTC met with him and purportedly told him that he would receive a
misbehavior report if he did not learn and say the 12-step regimen.
Claimant subsequently filed the current claim contending, inter alia,
that he was punished because of his religious beliefs. He alleged eight causes
of action premised upon various purported violations of his rights under the New
York Constitution, the Correction Law and a DOCS' Directive. Defendant's
answer included six defenses. Claimant has now moved to dismiss all six
defenses from the answer.
The allegations in an answer are liberally construed and receive the benefit
of every favorable inference when subjected to a motion to strike a defense
(Nahrebeski v Molnar, AD2d , 730 NYS2d 646;
Warwick v Cruz, 270 AD2d 255). If there is any reasonable dispute
regarding the viability of a defense, it should not be summarily stricken
(Abney v Lunsford, 254 AD2d 318; Krantz v Garmise, 13 AD2d
Defendant's first defense asserts that "to the extent the claimant alleges
civil rights violations, the Court lacks subject matter jurisdiction . . . ."
Defense counsel argues that the sixth paragraph of the claim includes a
purported cause of action under the First Amendment to the United States
Constitution. Defendant is correct in its assertion that the Court of Claims
does not have subject matter jurisdiction over Section 1983 claims premised upon
the United States Constitution (see, e.g., Brown v State of New York
NY2d 172). It does not appear, however, that claimant is asserting a Federal
Civil Rights cause of action. Indeed, the sixth paragraph of the claim purports
to assert a cause of action only under Correction Law § 610(1). The court
therefore shall dismiss defendant's first
The second and third defenses assert culpable conduct of claimant and an
unidentified third person, respectively. The nature of the allegations set
forth in the claim do not appear susceptible to comparative negligence defenses.
Claimant has, however, garbed some of his allegations in negligence phraseology
(see, e.g., Claimant's Affidavit, par. 1). The court is thus disinclined
at this early juncture to dismiss the second and third defenses.
The fourth defense alleges the claim is defective because it is not verified.
In Martin v State of New York (185 Misc 2d 799), Judge Corbett held that
the complete failure to verify a claim constituted a jurisdictional defect.
Here, however, there was not a total failure to verify the claim. The claim is
denoted as a "verified claim" and, importantly, a jurat is set forth at the end
reciting that claimant swore before a notary. While the pro se claimant failed
to recite verification language in complete compliance with CPLR 3021, it is
nevertheless evident from the verified claim and claimant's affidavit (par. 14)
that claimant understood he was swearing to the truth of the claim (see,
People v Holmes, 93 NY2d 889). Under such circumstances, the court is not
convinced that the inexact verification rises to the level of a jurisdictional
defect (see, Williams v State of New York, 77 Misc 2d 396; cf., People
v Holmes, supra). The fourth defense is dismissed.
The fifth defense, alleging privilege for discretionary determinations is
proper. Defendant has agreed to withdraw its sixth
in which it alleged that the claim was
not filed with the Clerk of the Court of Claims.
ORDERED that claimant's motion is granted, in part, and the first and
fourth defenses are dismissed, the sixth defense has been voluntarily withdrawn
and thus the motion is moot as to it, and the motion is otherwise denied.