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.
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
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,
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
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.
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
(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.
Claim, filed September 7, 2001.
Verified Answer, filed October 11, 2001.
Verified Answer to Amended Claim, filed February 25, 2002.
Verified Bill of Particulars, filed May, 23, 2002.
Notice of Motion No. M-67482, dated September 18, 2003, and filed October 3,
Affidavit of Tamar Loper, in support of Motion No. M-67482, sworn to September
15, 2003, with attached exhibits.
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.
Notice of Motion No. M-67535, dated October 14, 2003, and filed October 17,
Affirmation of James E. Shoemaker, AAG, in support of Motion No. M-67535, dated
October 14, 2003, with attached exhibits.
"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,
Affidavit of Tamar Loper, in support of Cross-Motion No. CM-67587, sworn to
October 27, 2003, with attachments.
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
Notice of Motion No. M-67588, dated September 29, 2003, and filed October 30,
Affidavit of Tamar Loper, in support of Motion No. M-67588, sworn to October 6,
2003, with attached exhibits.