New York State Court of Claims

New York State Court of Claims

ABDULLAH v. THE STATE OF NEW YORK, #2001-007-141, Claim No. 104525, Motion No. M-64269


Claimant moved to dismiss defenses set forth in defendant's answer. Motion granted, in part, and otherwise denied

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

John L. Bell
Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
December 7, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has made an application for an order dismissing the defenses set forth in defendant's answer pursuant to CPLR 3211(b). The return date of the motion was November 21, 2001. The following papers were read and considered by the court:
Notice of Motion, Affidavit of Claimant 1, 2

Affirmation in Opposition of Michele M.

Walls, Esq., Annexed Exhibits, Letter
from Michele M. Walls, Esq. 3, 4, 5

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[18]; 7 NYCRR 100.126[3]). 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 426).

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, 89 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 defense.[1]

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 defense[2] in which it alleged that the claim was not filed with the Clerk of the Court of Claims.

It is

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.

December 7, 2001
Plattsburgh, New York

Judge of the Court of Claims

[1] It merits noting that, since a lack of subject matter jurisdiction is a non-waivable defense that can be asserted at any time (see, e.g., Editorial Photocolor Archives v Granger Collection, 61 NY2d 517; Matter of Watervliet Hous. Auth. v Bell, 262 AD2d 810), in the event the pro se claimant attempts to prove a Federal Civil Rights claim, defendant will not be precluded by this decision and order from seeking dismissal of such a claim.
[2] Although counsel's affirmation indicated that the "fifth" defense was being withdrawn, it was clear from the context of the affirmation that defendant was withdrawing the sixth defense; a fact defense counsel clarified in a subsequent letter.