New York State Court of Claims

New York State Court of Claims

JONES v. STATE OF NEW YORK, #2002-018-121, Claim No. 102461, Motion Nos. M-63420, M-64075, CM-63515, CM-64103


Synopsis


Defendant's motion to dismiss claim is granted. Claimant's original claim contained a jurisdictional defect and should not have been subject to amendment.

Case Information

UID:
2002-018-121
Claimant(s):
CHARLES JONES
Claimant short name:
JONES
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102461
Motion number(s):
M-63420, M-64075
Cross-motion number(s):
CM-63515, CM-64103
Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
CHARLES JONESPRO SE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 29, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
There are four motions before the Court. Defendant brings a motion to dismiss (M-63420) part of the claim on the ground that the Court lacks subject matter jurisdiction over the constitutional tort causes of action and cannot grant punitive damages as contrary to public policy. Claimant cross-moves (CM-63515) for an order striking defendant's motion to dismiss and for summary judgment on the cause of action for negligent dental treatment. Claimant next brings a motion to preclude, compel and for sanctions (M-64075). Defendant brings a cross-motion to dismiss the entire claim (CM-64103).

Claimant served a claim[1]
upon the attorney general on May 12, 2000. Thereafter claimant served an amended claim[2] upon the attorney general on July 11, 2000. In the amended claim, claimant seeks to recover for a deprivation of his first amendment rights as a result of being prohibited by prison officials from corresponding with two State Supreme Court Justices; and for the cruel and unusual punishment suffered as a result of the State's refusal to provide proper dental treatment which, according to claimant, required his broken teeth be capped instead of applying a resin bonding.[3] Additionally, the State failed to replace a dental bridge which claimant asserts is cruel and inhuman treatment. Claimant's last cause of action seeks damages for injuries sustained as a result of a slip and fall in the gymnasium at Ogdensburg Correctional Facility. Defendant filed an answer to the original claim on June 2, 2000, and an answer to the amended claim on April 26, 2001.
Claimant takes issue with the fact that defendant has brought three motions to dismiss the claim, when only one motion is permitted under CPLR 3211.[4]
Claimant is correct, all applicable grounds for dismissal should be made in one motion to dismiss. (CPLR 3211(e); McLearn v Cowen & Co., 60 NY2d 686) Yet, the Court cannot ignore a defect based upon lack of subject matter jurisdiction. Such a jurisdictional defect can be raised at any time, or even sua sponte [5](CPLR 3211(e); Eckert v Eckert, 34 AD2d 684; Anonymous Town Justice v State Comm. on Judicial Conduct, 96 Misc 2d 541; Williams v State of New York, Ct Cl, J. Collins, unpublished decision, signed August 17, 2001, Claim No. 102081, Motion Nos. M-63063, M-63531) Under these circumstances, although a second motion to dismiss is not permissible, the Court will address the issue sua sponte.
There exists a fatal jurisdictional defect in that neither the original claim nor the amended claim were verified in the same manner as a complaint in an action in Supreme Court as required by Court of Claims Act §11(b). The failure to verify a claim has been found to be a non-waivable jurisdictional defect. (See, Martin v State of New York, 185 Misc 2d 799; Williams v State of New York, supra; Malloy v State of New York, Ct Cl, Presiding J. Read, unpublished decision, filed December 12, 2001, Claim No. 104933, Motion No. M-64215; but see, Rivera v State of New York, Ct Cl, J. McNamara, unpublished decision, signed November 26, 2001, Claim No. 104625, Motion No. M-64077) A jurisdictional defect cannot be corrected by amendment. (Manshul Constru. Corp. v State Ins. Fund, 118 AD2d 983; Grande v State of New York, 160 Misc 2d 383)
Since claimant's original claim was not verified, it was defective and should not have been subject to the amendment which the Court permitted by its previous decision and order dated March 2, 2001 and filed April 18, 2001.
(Manshul Constru. Corp. v State Ins. Fund, 118 AD2d 983, supra).
Accordingly, the claim is DISMISSED.
Based upon the foregoing, defendant's motion (CM-64103) is DENIED as not permissible under CPLR 3211(e). All other motions pending are hereby DENIED as moot.

January 29, 2002
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in determining the motions:

Notice of Motion, Motion No. M-63420........................................................................1

Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General

with all exhibits attached thereto...........................................................................2


Notice of Cross Motion, Motion No. CM-63515...........................................................3


Affidavit of Charles Jones..............................................................................................4


Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General

in opposition.......................................................................................................5


Notice of Motion, Motion No. M-64075........................................................................6


Affidavit of Charles Jones, with exhibits attached thereto.............................................7


Affidavit of Charles Jones in further support of motion (See #12 below)*


Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General

with exhibits attached thereto.............................................................................8


Supplemental affirmation of Joel L. Marmelstein, Esquire,

Assistant Attorney General.................................................................................9


Notice of Cross Motion, Motion No. CM-64103..........................................................10


Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General

with all exhibits attached thereto...........................................................................11


Affidavit of Charles Jones, in opposition.......................................................................12*


Filed Documents:


Claim...............................................................................................................................13


Verified Answer..............................................................................................................14


Amended Claim...............................................................................................................15

Amended Answer.............................................................................................................16


[1]This document was labeled a complaint, but it is a claim for purposes of this Court and will be referred to as such.
[2] Claimant labeled this document an "amended complaint", it will be referred to as an amended claim., see note 1 above.
[3] These causes of action were dismissed by order of this Court in Jones v State of New York, Ct Cl, J Fitzpatrick, unpublished decision, filed April 18, 2001, Claim No. 102461, Motion Nos. M-62300, M-62272, CM-62440.
[4] The first motion to dismiss was addressed to the original claim, and therefore, the second motion to dismiss addressed to the amended claim was proper. (Shelley v Shelley, 180 Misc 2d 275)
[5] A CPLR 3211 motion can also be treated as a motion for summary judgment pursuant to CPLR 3211(c), upon notice to the parties. Such treatment could eliminate any argument of a violation of the "single motion rule" of CPLR 3211(e); however, it is not appropriate here where there are factual issues and the potential for relief under Court of Claims Act §10(6).