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
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.
Footnote (claimant name)
GLENN S. GOORD, Commissioner, State of New York Department of Correctional Services; CHRIST T. MELLAS, Superintendent, Watertown Correctional Facility
Footnote (defendant name)
DIANE L. FITZPATRICK
PEDRO MORELPro Se
Attorney General of the State of New York
By: Edward F. McArdle, EsquireAssistant Attorney General
May 26, 2004
See also (multicaptioned
Defendant makes a motion seeking dismissal of the claim. Claimant also brings
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
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
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
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.
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
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
HON. DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding these
Motion No. M-68015
Affirmation of Edward F. McArdle, Esquire, Assistant Attorney General,
in support, with exhibit attached
Answer to Defendant's Motion for Dismissal of Pedro Morel, in
Motion No. M-68016
Affidavit of Pedro Morel, in
Affirmation of Edward F. McArdle, Esquire, Assistant Attorney General,