New York State Court of Claims

New York State Court of Claims

LOPER v. THE STATE OF NEW YORK, #2003-019-569, Claim No. 104861, Motion Nos. M-67482, M-67535, M-67588, CM-67587


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):
M-67482, M-67535, M-67588
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
November 13, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


There are four motions pending before the court relative to this claim. In Motion No. M-67482, claimant, an inmate appearing pro se, moves for an order striking certain affirmative defenses contained in the defendant's Verified Answer. The defendant State of New York (hereinafter "State") opposes the motion and, in Motion No. M-67535, moves to dismiss this claim pursuant to Court of Claims Act ("CCA") 10 and 11. Claimant opposes the State's dismissal motion and cross-moves, in Cross-Motion No. CM-67587, for permission to file and serve a second amended claim. Claimant has also filed a motion to compel discovery, namely Motion No. M-67588.[1]

By way of background, the underlying claim alleges that correction officials have tampered with claimant's food during his incarceration at Southport Correctional Facility. On November 9, 2000, claimant served a notice of intention upon the State via certified mail, return receipt requested.[2] Thereafter, this claim was filed and served, by certified mail, return receipt requested, on September 7, 2001. The State filed a Verified Answer with the Clerk of the Court on October 11, 2001.[3]

Claimant's motion to strike affirmative defenses (M-67482)

Claimant seeks to strike the State's first, third, fourth, and fifth affirmative defenses. The affirmative defenses at issue are as follows: lack of subject matter jurisdiction (First); failure to particularize the claim in compliance with CCA § 11 (Third); culpable conduct on behalf of claimant (Fourth); and culpable conduct of a third party (Fifth). Generally, "[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." (CPLR 3024 [b]). Affirmative defenses are not dispositive of a claim and are merely assertions of a party, absent prejudice, that will not be stricken. (CPLR 3024; 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 3018.14). None of these affirmative defenses are prejudicial or scandalous in any respect whatsoever. The State properly included all these affirmative defenses in its Verified Answer. Claimant's motion to strike the above-referenced affirmative defenses is denied in its entirety.

State's motion for dismissal (M-67535) and Claimant's cross-motion to amend (CM-67587)

By way of this motion, the State contends that claimant failed to serve a notice of intention or file and serve a claim within 90 days as required by CCA 10 and 11.[4] In support of this motion, the State relies upon a date of accrual of March 6, 2000 as listed in the notice of intention and claim themselves. In opposition and in support of his cross-motion to amend, claimant argues that there were numerous subsequent dates on which State employees continued the alleged pattern of contaminating his food, as well as harassment and retaliatory conduct.

In this court's view, claimant's own grievances establish that the proper accrual date in this matter is March 8, 2000. Of particular interest to the court are 3 grievances filed by claimant relating to the alleged intentional tampering with his food, namely grievances dated March 7, 2000; March 8, 2000; and March 13, 2000. (State's Exhibits E, F, and G, respectively). Each of these grievances refers to alleged incidents of food tampering that occurred on one or all of the following dates, March 3, 2000; March 6, 2000; and March 8, 2000. For purposes of argument here the court will give claimant every benefit and use the latest possible date of accrual, namely March 8, 2000.

As such, if the court uses the latest possible accrual date of March 8, 2000, then both the service and filing of this claim on September 7, 2001 were beyond the ninety-day statutory period to do so, unless a notice of intention was served on the defendant within ninety days of said accrual date. However, the notice of intention here was not served until November 9, 2000, which was also served beyond the ninety-day statutory period.

Claimant's attempts to include subsequent - and thus timely - accrual dates in his opposing and moving papers warrant brief discussion. The court notes that the list of dates after March 8, 2000 contained throughout this claim and highlighted by claimant in his papers do not serve to extend the date of accrual since these dates relate to, among other things, dates on which claimant filed grievances; dates of letters sent by claimant to different officials; dates on which claimant received responses to his various grievances and inquiries; and dates of medical appointments. Additionally, the court notes that claimant's Verified Bill of Particulars references an accrual date of October 4, 2000, but claimant has made no showing whatsoever that this is a valid date of accrual in view of the foregoing. (Claimant's Verified Bill of Particulars, ¶ 3). Moreover, claimant has offered no authority from which this court could conclude that the alleged pattern of harassment and retaliation constitutes any type of "continuing wrong" which would serve to extend the date of accrual.[5] (Claimant's Affidavit [CM-67587], ¶ 14, p 9).

Finally, claimant attempts to avoid dismissal by asserting a need for additional discovery. A request to stay a summary judgment motion to allow for further discovery may be rejected when, as here, there is no realistic expectation of uncovering useful information to the contrary. (Yunk Chul Jee v B.P. Cleaners, 215 AD2d 651, 652). Here, claimant offers nothing but the hope that he will discover helpful information to support different and later dates of accrual. Claimant's request for an opportunity to conduct additional discovery is denied.

In sum, it is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in the CCA are jurisdictional in nature and must be strictly construed. (CCA 11; Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). Claimant has failed to establish compliance with CCA 10 and 11 as is his burden. (Boudreau v Ivanov, 154 AD2d 638). Based on the foregoing, the court finds that this claim was untimely filed and served and, as such, must be dismissed.

Consequently, for the reasons stated above, it is ORDERED that the State's motion for dismissal, Motion No. M-67535, is GRANTED; claimant's Motion No. M-67482 and Cross-Motion CM-67587 are DENIED; and Claim No. 104861 is DISMISSED. Claimant's motion to compel discovery, Motion No. M-67588, returnable November 26, 2003 is stricken from the court's motion calendar and DENIED as moot in view of the foregoing.

November 13, 2003
Binghamton, New York

Judge of the Court of Claims

The Court has considered the following papers in connection with these motions:
  1. Claim, filed September 7, 2001.
  2. Verified Answer, filed October 11, 2001.
  3. Verified Answer to Amended Claim, filed February 25, 2002.
  4. Verified Bill of Particulars, filed May, 23, 2002.
  5. Notice of Motion No. M-67482, dated September 18, 2003, and filed October 3, 2003.
  6. Affidavit of Tamar Loper, in support of Motion No. M-67482, sworn to September 15, 2003, with attached exhibits.
  7. Affirmation of James E. Shoemaker, AAG, in opposition to Motion No. M-67482, dated October 7, 2003, and filed October 9, 2003, with attached exhibit.
  8. Notice of Motion No. M-67535, dated October 14, 2003, and filed October 17, 2003.
  9. Affirmation of James E. Shoemaker, AAG, in support of Motion No. M-67535, dated October 14, 2003, with attached exhibits.
  10. "CROSS MOTION IN OPPOSITION TO MOTION TO DISMISS AND 2ND NOTICE OF MOTION TO AMEND", Cross-Motion No. CM-67587, dated October 15, 2003, and filed October 30, 2003.
  11. Affidavit of Tamar Loper, in support of Cross-Motion No. CM-67587, sworn to October 27, 2003, with attachments.
  12. Affirmation of James E. Shoemaker, AAG, in opposition to Cross-Motion No. CM-67587, dated November 3, 2003, and filed November 5, 2003, with attached exhibits.
  13. Notice of Motion No. M-67588, dated September 29, 2003, and filed October 30, 2003.
  14. Affidavit of Tamar Loper, in support of Motion No. M-67588, sworn to October 6, 2003, with attached exhibits.

[1]Claimant's motion to compel discovery, Motion No. M-67588, is not returnable until November 26, 2003.
[2]This claim also references the service of another notice of intention on May 25, 2000 (Claim, ¶ 14). However, the State represents that said notice of intention was served in relation to an entirely separate claim, namely Claim No. 102779.
[3]The State also filed a Verified Answer to Amended Claim on February 25, 2002.
[4]Contrary to claimant's argument, the court finds that the State preserved this issue for review by raising, with particularity, claimant's failure to comply with CCA 11 (a) as an affirmative defense in both its Verified Answer (First Affirmative Defense) and Verified Answer to Amended Claim (Second Affirmative Defense). (CCA 11 [c]).

[5]Further, the court notes that the proper venue for so-called retaliation claims are the inmate grievance procedure and Article 78 proceedings, not the Court of Claims. (Zulu v State of New York, Ct Cl., May 21, 2001, Patti, J., Claim No. 96973 & 96974, Motion Nos. M-63183 & M-63184 [UID No. 2001-013-006]). Unreported decisions from the Court of Claims are available via the Internet at