New York State Court of Claims

New York State Court of Claims

ABDULLAH v. THE STATE OF NEW YORK, #2002-015-219, Claim No. 104962, Motion No. M-64251


Claimant's motion pursuant to CPLR 3211 (b) to dismiss boilerplate defenses with no relevance to issues presented by claim is granted. Defenses related to assertions in claim are sustained.

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):

Claimant's attorney:
Jarquay Azzam Abdullah, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 28, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion pursuant to CPLR 3211 (b) for an order striking the affirmative defenses set forth in the defendant's answer is granted in part and denied in part. The instant claim is predicated upon the alleged failure of the Department of Correctional Services (DOCS) to provide claimant, a professed follower of Islam and an inmate housed at the Chateauguay Alcohol Substance Abuse Comprehensive Treatment Center at Chateauguay, New York, with a religiously appropriate breakfast alternative. The claim seeks $250,000.00 in damages and asserts causes of action for the alleged violation of claimant's right to the free exercise of his religion; subjection of claimant to cruel and unusual punishment by depriving him of nutritious food and denial of his right of equal protection of the law as a result of the Department of Correctional Services' (DOCS) refusal to provide claimant with a nutritious substitute at breakfast in conformity with his religious beliefs and equivalent to that provided other inmates. The claim alleges that each cause of action arises under either or both the New York State Constitution Article I Sections 1, 3, 5 and 11, New York Correction Law § 137 (3) or § 610 (1), (2), (3).

Claimant initially filed a grievance pursuant to the inmate grievance procedure authorized by Correction Law § § 112, 138 and 139 and governed by regulations set forth in 7 NYCRR Part 701. Section 701.7 of the regulations provides that the first step of the grievance procedure is the submission of the grievance to the Inmate Grievance Resolution Committee (IGRC) which is comprised of two voting inmate members, two voting staff members and a nonvoting chairperson (see, 7 NYCRR § 701.4 [a]). The IGRC split their votes on clamant's grievance with the inmate members voting in favor of the grievant and the staff members opposing the relief sought on the ground that the committee lacked authority to change DOCS [Statewide] menu at the facility level. Claimant filed an appeal to the Superintendent of the facility dated June 26, 2001pursuant to 7 NYCRR § 701.7(b). The Superintendent's decision stated:
This grievance pertains to a concern regarding the statewide menu. The grievant claims the menu does not afford religious alternative items for every meal. He specifically cites whenever turkey sausages or turkey ham and egg pockets are served for breakfast, there is no alternative listed on the menu. The grievant requested this issue be brought to the attention of Central Office staff as he realizes the facility must follow the statewide menu furnished by them.

It is important to note that DOCS Directive # 4310 - Nutritional Services Operations Manual specifies that an alternative is required only when pork is served. The turkey ham omelet pocket does not contain pork.

However, the grievant's request was honored and the Clinton HUB's Regional Food Service Representative, Dennis Mullen, was contacted on 6/28/01 regarding the concern expressed in this grievance. Mr. Mullen advised that meat items at the breakfast meal are considered side dishes not requiring an alternative item. Additionally, Mr. Mullen forwarded this concern to the Department's nutritionist, Elizabeth Culkin. Ms. Culkin advised the facility on 7/11/01 that there is an alternative currently offered for some entrees at lunch and dinner. However, she is not aware of any plans to offer an alternative at breakfast.

The facility has provided the remedy sought in this grievance by communicating the concerns to Central Office staff.
Claimant thereafter appealed the Superintendent's decision to CORC as provided in 7 NYCRR § 701.7 (c) by alleging on form 2133 that:
Under State of New York, Department of Correctional Services Directive #4202 (b,c,p,) and Directive # 4310, Section 1(b), Facility Menus, all prisoners can refrain from eating food items which go contrary to their religious beliefs and a nutritionally adequate alternate diet should be provided to these individuals.
On August 1, 2001 CORC unanimously denied the grievance stating the following:
Upon full hearing of the facts and circumstances in the instant case, and upon recommendation of the Division of Nutritional Services, the action requested herein is hereby denied. CORC upholds the determination of the Superintendent for the reasons stated.

CORC notes that there is no requirement for alternatives to be provided for breakfast unless pork is served.
Claimant did not commence an article 78 proceeding in Supreme Court to challenge the CORC's determination but rather commenced this claim which was served by certified mail, return receipt requested upon the Office of the Attorney General on September 4, 2001 and filed with the Clerk of the Court on September 26, 2001. The State served an answer dated October 4, 2001 and claimant now moves pursuant to CPLR 3211 (b) to dismiss the defenses contained in the answer. As and for a first defense the State, in part, alleges that claimant's own negligence or culpable conduct caused or contributed to his injuries and/or damages. The second defense which is stated in substantially similar language alleges that claimant's injuries or damages were caused by or contributed to by the negligence, fault or want of care of one or more third parties for whose actions the State of New York is not responsible. Although the claimant asserts in each of the claim's four causes of action that the defendant was negligent, it seems obvious that the instant claim is grounded not in negligence but in either constitutional tort or statutory or regulatory violation. Accordingly, the boilerplate defenses set forth in the first and second defenses have no application to the issues raised by the allegations set forth in the claim.

In opposition to the motion defense counsel argues that the first and second defenses "are statutorily enumerated affirmative defenses which the defendant must plead or they are deemed waived. In addition, it is the defendant's burden at trial to establish that either the claimant's or some third party's conduct contributed to claimant's injuries, which would reduce any award that claimant might receive." While it is true that culpable conduct claimed in diminution of damages as set forth in article fourteen-A of the CPLR is statutorily enumerated as an affirmative defense in CPLR § 3018 (b) and that pursuant to CPLR § 1412 it is the defendant's burden to plead and prove the defense, it is equally true that defendant's first and second defenses have no application to the alleged facts pleaded in the instant claim and the defendant has failed to raise a material issue of fact precluding dismissal of the defenses (Harrison v State of New York, 262 AD2d 833). As a result, the Court finds that the first and second defenses set forth in the answer lack merit and they are hereby dismissed.

The State's third defense alleges that the denial of a breakfast meat substitute conforming to claimant's alleged religious dietary restrictions is privileged as a judicial or quasi-judicial determination made by DOCS officials while acting within the scope of their official duties and that the State is, therefore, immune from liability predicated upon such privileged action. Under the facts presented on the motion it cannot be said that the defendant has failed to state a defense in this regard nor can it be determined at this early stage that the third defense lacks merit. The third defense, therefore, survives claimant's motion to dismiss.

The State's fourth defense actually contains two defenses addressed to the claim's allegations concerning the State's violation of claimant's civil rights; namely that the court lacks subject matter jurisdiction over the claim and that the claim fails to state a cause of action. Defense counsel argues in paragraph "9" of the affirmation in opposition to the motion that the asserted defense is meritorious at least in part because pursuant to the Court of Appeals determination in Brown v State of New York, 89 NY2d 172, the Court of Claims has no jurisdiction over a claim alleging a violation of the Eighth Amendment to the United States Constitution.

Although the Court's review of the claim, attached as Exhibit A to defense counsel's affirmation, revealed no allegation that the defendant violated claimant's rights under the United States Constitution this alone does not require that the defendant's fourth defense be struck. As noted above, the separate defenses set forth in the fourth defense may indeed have application to the instant claim. Accordingly, claimant's motion to dismiss the fourth defense is denied.

The instant motion seeking dismissal of the State's defenses is granted as to the first and second defense and denied as to the third and fourth defenses set forth in the answer.

January 28, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated October 31, 2002;
  2. Affidavit of Jarquay Azzam Abdullah sworn to October 31, 2001;
  3. Letter dated November 4, 2001 from Jarquay Azzam Abdullah with exhibits;
  4. Affirmation of Michele M. Walls dated November 9, 2001 with exhibits.