New York State Court of Claims

New York State Court of Claims

MOREL v. GLENN S. GOORD, Commissioner, State of New York Department of Correctional Services; CHRIST T. MELLAS, Superintendent, Watertown Correctional Facility, #2004-018-304, Claim No. 108816, Motion Nos. M-68015, M-68016


Synopsis


Defendant's motion to dismiss on the following grounds: (1) the caption fails to name the State of New York as defendant; (2) the claim fails to comply with the requirements of Court of Claims Act § 11; and (3) the claim fails to state a cause of action, is DENIED. Claimant's motion to amend the caption is GRANTED, and his request for Court Ordered disclosure is DENIED.

Case Information

UID:
2004-018-304
Claimant(s):
PEDRO MOREL
Claimant short name:
MOREL
Footnote (claimant name) :

Defendant(s):
GLENN S. GOORD, Commissioner, State of New York Department of Correctional Services; CHRIST T. MELLAS, Superintendent, Watertown Correctional Facility
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108816
Motion number(s):
M-68015, M-68016
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
PEDRO MORELPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Edward F. McArdle, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 26, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant makes a motion seeking dismissal of the claim. Claimant also brings a motion

seeking permission to amend his claim pursuant to CPLR 3025 and requesting a Court Order directing defendant to allow him to inspect the 80 lb. weight that is the subject of his claim. These two motions will be decided together. The Court will address defendant's motion first.
Defendant's Motion To Dismiss M-68015
Defendant seeks dismissal of the claim on these separate grounds: (1) the caption fails to name the State of New York as defendant; (2) the claim fails to comply with the requirements of Court of Claims Act § 11; and (3) the claim fails to state a cause of action.

Claimant has named Glenn S. Goord, Commissioner of the Department of Correctional Services and Christ T. Mellas, Superintendent of the Watertown Correctional Facility as defendants without separately naming the State of New York. Defendant argues that this Court has jurisdiction to hear claims against the State of New York only, not individual State employees; and as a result, the claim must be dismissed for lack of jurisdiction.

Defendant does not object to the service of the claim, which was served upon the Attorney General on November 26, 2003, well within 90 days of the date of accrual (October 24, 2003) as required by Court of Claims Act § 10(3). A copy of the envelope in which the Attorney General received the claim was provided by defendant with the motion papers, indicating that service was properly made by certified mail, return receipt requested in accordance with Court of Claims Act § 11(a)(i). The claim was filed on January 22, 2004, on the 90th day after the date of accrual in accordance with Court of Claims Act § 10(3).

Although the Court of Claims only has jurisdiction to hear claims against the State of New York and certain other State agencies, the failure to name the State as defendant has been held to be only a procedural irregularity where the State has been properly served, the documents provide sufficient notice that the claim is actually against the State of New York, and there is no prejudice to the State (see, Great Eastern Mall, Inc. v Condon, 36 NY2d 544, 548; Schwartzberg v State of New York, 121 Misc 2d 1095, affd 98 AD2d 902; Martino v New York State Thruway Authority, 154 Misc 2d 905, 911; Ibekweh v State of New York, 157 Misc 2d 710). Here, the State was properly served with the documents, the claim asserts that Department of Correctional Services employees were negligent for failing to properly inspect and maintain certain weights at the Watertown Correctional Facility, clearly placing the State on notice of its potential liability for the actions or inaction of its employees, and no prejudice has been alleged. Under these circumstances, the failure to name the State as defendant is not a jurisdictional defect but a mere irregularity.

Turning to defendant's second argument for dismissal, defendant argues that the claim fails to comply with the requirements of Court of Claims Act § 11. Defendant argues that claimant has not alleged constructive notice on the part of the State or adequately alleged the nature of his claim.

The claim sets forth in relevant part:
4. That the time when the instant claim arose was

approximately 10:30 a.m. on October 24, 2003.

5. That the place where the instant claim arose was the

"weight room" located adjacent to the gymnasium at

the Watertown Correctional Facility.

6. That the manner in which the instant claim arose is

set forth as follows:

A. At the time an [sic] place aforesaid the claimant
was doing a routine pull-over exercise with an 80 lb. dumbbell owned by the New York State Department of Correctional Services.

B. While performing one of such routine pull-over exercises,

one of the 40 lb. solid steel weights broke away from the bar.

C. This occurred while the subject dumbbell was positioned

directly over the claimant's head.

D. Resulting [sic] was that the 40 lb. weight fell and hit the claimant on the left side of his face, neck and shoulder, thereby causing physical injury to him.

7. That by reason of the foregoing, the claimant has and continues to suffer severe pain and discomfort, he is unable to conduct his life in a normal manner, he will likely suffer permanent and protracted physical disfigurement, pain and discomfort, and he will likely incur substantial medical costs....

8. B. That said Defendant Glenn S. Goord was therefore negligent in failing to ensure that the wieghts [sic] owned by the New York State Department of Correctional Services and made available to the inmates incarcerated at the Watertown Correctional Facility were routinely inspected by which [sic] to ensure that such were properly maintained and safe for inmate use...

9. B. That said Defendant Christ T. Mellas, as the Superintendent of the Watertown Correctional Facility, is also himself responsible to ensure that the weights owned by the New York State Department of Correctional Services and made available to inmates incarcerated at the Watertown Correctional Facility are routinely inspected and /or properly maintained by which to ensure that such are safe for use by inmates; and

C. That said Defendant Christ T. Mellas was therefore negligent by failing to ensure that the weight that broke and injured the claimant was inspected and/or maintained in order to ensure that such was safe to be used as intended by the claimant.


Court of Claims Act § 11(b) requires that the claim state "the time when and place where such claim arose, the nature of the same, and the items of damage or injuries claimed to have been sustained and the total sum claimed." Those five requirements must be provided by claimant in order to comply with Court of Claims Act § 11(b). The State has no obligation to "ferret out or assemble information" that the statute requires (Lepkowski v State of New York, 1 NY3d 201, 208). However, absolute exactness is not required, "but simply 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" (Heisler v State of New York, 78 AD2d 767, 767; Lepkowski v State of New York, 1 NY3d 201). Here, claimant has satisfied § 11(b). The claim clearly meets all five requirements. Although claimant's description of the nature of the claim could be more specific, it nonetheless alerts defendant to what claimant alleges it did wrong and permits defendant to investigate and assess its potential liability under the circumstances.

Defendant's final argument for dismissal of the claim, asserts that claimant was voluntarily involved in a sporting activity, weightlifting, and therefore assumed the risks associated with that activity, as a result no cause of action has been stated.

"Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary" (Murphy v Steeplechase Amusement Co., 250 NY 479, 482). As to those dangers, obvious and apparent to a participant in a sporting activity, there is no duty to protect against such dangers, because the participant is viewed as having expressly assumed the risk (Morgan v State of New York,, 90 NY2d 471, 488; Arbegast v Board of Educ. of South Berlin Cent. School, 65 NY2d 161). Where a participant has contractually accepted the inherent risks of playing an activity, or by full knowledge and assent has accepted those risks, assumption of the risk bars the imposition of liability (see, Maddox v City of New York, 66 NY2d 270, 276). The key issue is whether the injury producing danger was an inherent risk of the sport; "inherency is the sine qua non" (Morgan v State of New York,, 90 NY2d at 484). Even where there has not been express assent, there may be implied assumption of the risk. Implied assumption of the risk comes into play when the risks associated with participation are open and appreciable, yet despite these apparent risks the participant continues playing the game. Bearing on the risk assumed is the participant's knowledge, voluntary participation and experience playing the game. In either case, a participant does not assume the risk that defendant has engaged in conduct creating a concealed or dangerous condition beyond what would be an inherent risk of participation in the sport or activity (Morgan v State of New York,, 90 NY2d at 485).

On a pre-answer motion to dismiss pursuant to CPLR 3211(a)(7), the claim must be liberally construed, accepting all facts alleged to be true, and according every favorable inference to claimant in order to determine whether a cause of action has been stated (Leon v Martinez, 84 NY2d 83, 87; HBP Assoc. v State of New York, 254 AD2d 457; Murphy v Erie County, 34 AD2d 295, affd 28 NY2d 80). Accepting claimant's assertions that the weight "broke away from the bar" and struck him in the face, and that the State was negligent in not inspecting and properly maintaining the weights, claimant has stated a cause of action for purposes of a CPLR 3211(a)(7) motion. A weight breaking away from the bar is not a risk clearly inherent in weightlifting, as a matter of law, without additional proof as to claimant's experience in weightlifting, whether the condition of the weights was clearly observable, etc.

Based upon the foregoing, defendant's motion is denied.
Claimant's Motion to Amend Claim and Court Ordered Disclosure (Motion No. M-68016)
Claimant seeks to amend his claim to add the State of New York as defendant. Claimant argues that he is a layman of the law and should not be held to stringent pleading standards. Defendant argues in opposition that claimant cannot cure a jurisdictional defect by amendment, and he has failed to submit a copy of the proposed amended claim as required.

As previously discussed, where claimant has properly and timely served the correct defendant in accordance with Court of Claims Act §§ 10 and 11, the failure to actually name the State of New York as defendant has been held to be only a mere irregularity and not a jurisdictional defect (see, Great Eastern Mall, Inc. v Condon, 36 NY2d 544, 548; Schwartzberg v State of New York, 121 Misc 2d 1095, affd 98 AD2d 902; Martino v New York State Thruway Authority, 154 Misc 2d 905, 911; Ibekweh v State of New York, 157 Misc 2d 710). Although the better practice would have been to attach a copy of the proposed amended claim for the Court's review, where the only change is in the caption the Court does not find that the failure to do so requires the denial of the motion (see, Knight v State of New York, 177 Misc 2d 181, 182; Rodriguez v State of New York, 153 Misc 2d 363, 364). Under these circumstances, the Court will grant claimant's motion and permit him to amend his claim to reflect the State of New York as defendant. Claimant must file the amended claim with the Clerk of the Court and serve a copy upon the Attorney General within 45 days of the date a copy of this decision and order is filed with the Clerk of the Court.

As for claimant's request for an order directing defendant to produce the weight which broke and caused his injuries, it is denied as premature. Claimant can request discovery pursuant to CPLR 3120 without the need for a Court Order.

Based upon the foregoing, Defendant's motion to dismiss is DENIED and claimant's motion is GRANTED in part and DENIED in part.


May 26, 2004
Syracuse, New York

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


The Court has considered the following documents in deciding these motions:


Motion No. M-68015


Notice of Motion....................................................................................................1


Affirmation of Edward F. McArdle, Esquire, Assistant Attorney General,

in support, with exhibit attached thereto....................................................2


Answer to Defendant's Motion for Dismissal of Pedro Morel, in opposition........3


Motion No. M-68016


Notice of Motion.....................................................................................................4


Affidavit of Pedro Morel, in support.......................................................................5


Affirmation of Edward F. McArdle, Esquire, Assistant Attorney General,

in opposition.................................................................................................6