New York State Court of Claims

New York State Court of Claims

VAN ALLEN v. THE STATE OF NEW YORK, #2004-015-437, Claim No. 109482, Motion No. M-68840


Synopsis


Defendant's pre-answer motion to dismiss claim lacking in sufficient specificity to enable the defendant to investigate is granted.

Case Information

UID:
2004-015-437
Claimant(s):
H. WILLIAM VAN ALLEN The caption was amended sua sponte by order dated August 25, 2004 to designate the State of New York as the only named defendant.
Claimant short name:
VAN ALLEN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption was amended sua sponte by order dated August 25, 2004 to designate the State of New York as the only named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109482
Motion number(s):
M-68840
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
H. William Van Allen, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Arnold, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 15, 2004
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant's pre-answer motion to dismiss the claim for lack of jurisdiction and failure to state a cause of action is granted. The claim alleges that "[o]n or about April 9, 2004, the Assistant Attorney General from the NYS-OAG and an Acting Supreme Court Justice (Albany County) with malice, conspired to delay, confuse and generally obstruct justice in the form of civil litigation captioned as Strunk and Van Allen v NYS Board of Elections et al Albany County index no. 1114-04 and various related federal civil litigation." Although the claim also contains general language regarding mail fraud purportedly obtained from a U.S. Postal Service internet web site ( it fails to provide any further facts or allegations concerning the underlying claim.

Prior to serving an answer the defendant moved pursuant to CPLR 3211 for an order dismissing the claim for lack of jurisdiction and for failure to state a cause of action. The pro se claimant opposed the motion.

On a pre-answer motion to dismiss a claim for failure to state a cause of action the Court is required to afford the pleading a liberal construction, accept claimant's allegations as true and accord him or her the benefit of every favorable inference (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314; Leon v Martinez, 84 NY2d 83). With regard to the specificity required of a claim the Appellate Division, Second Department in Wharton v City University of New York, 287 AD2d 559, 560 recently held:
Court of Claims Act § 11 (b) does not require 'absolute exactness'; it requires a statement made with 'sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State. In short, substantial compliance with section 11 is what is required' (Grumet v State of New York, 256 AD2d 441, 442 [internal quotation marks omitted]; Heisler v State of New York, 78 AD2d 767; see, Cobin v State of New York, 234 AD2d 498). However, 'conclusory or general allegations of negligence that fail to [state] the manner in which the claimant was injured and how the State was negligent do not meet its requirements' (Grumet v State of New York, supra, at 442; Heisler v State of New York, supra, at 767-768).

Viewed in this manner it is immediately apparent that the instant claim fails to state any viable cause of action against the State of New York. The claim does not allege how the named claimant has been injured or in what manner officers, employees or agents of the State caused or contributed to his purported injury.

To the extent that claimant may have intended to allege a civil conspiracy, New York does not recognize an independent tort of civil conspiracy. Such a cause of action is available only if there is evidence of an actionable underlying tort (see, Brenner v American Cyanamid Co., 288 AD2d 869; Baker v Vanderbilt Co., 260 AD2d 750; Le Sannom Bldg. Corp. v Dudek, 177 AD2d 390). The instant claim provides no facts from which such an underlying cause of action might be discerned.

Assuming arguendo that claimant was seeking to allege a criminal conspiracy he cannot seek legal redress in this Court nor may he seek to recover monetary compensation for alleged criminal activity in any Court (see, Criminal Procedure Law § 20.40; Penal Law § 20.00; People v Ribowsky, 77 NY2d 284).

Finally, the Court finds that the claim lacks sufficient specificity to enable the defendant to identify and/or to investigate the occurrence[s] allegedly giving rise to the instant claim (Grande v State of New York, 160 Misc 2d 383, 386). The claim fails to name the State officers or employees allegedly involved or allege any specific acts or omissions upon which claimant seeks to have liability imposed. Statutory requirements conditioning suits against the State must be strictly construed and the State is not required to assemble information the statute obligates the claimant to allege (Lepkowski v State of New York, 1 NY3d 201). As a result, the claim must be dismissed in that it fails to adequately set forth the operative underlying facts upon which the claim is predicated. Claimant's failure to comply with this very basic requirement of Court of Claims Act § 11 (b) renders the claim jurisdictionally defective (Grande v State of New York, supra; Harper v State of New York, 34 AD2d 865).

The defendant's motion is granted and the claim is hereby dismissed.


November 15, 2004
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated July 23, 2004;
  2. Affirmation of Kathleen M. Arnold dated July 23, 2004;
  3. Affidavit of H. William Van Allen sworn to August 9, 2004 with exhibits.