New York State Court of Claims

New York State Court of Claims

AVENT v. THE STATE OF NEW YORK, #2004-031-034, Claim No. 108473, Motion No. M-67727


Synopsis


Case Information

UID:
2004-031-034
Claimant(s):
MESSIAH AVENT
Claimant short name:
AVENT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108473
Motion number(s):
M-67727
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
MESSIAH AVENT, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: TIMOTHY P. MULVEY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 5, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 3, were read on motion by Defendant for an order dismissing the claim:
1. Notice of Motion, filed November 28, 2003;
2. Affirmation of Timothy P. Mulvey, Esq., dated November 25, 2003 with attachments;
3. Filed Papers: Claim. This is Defendant's motion, filed in lieu of an answer, seeking dismissal of the claim. The claim, filed on October 31, 2003, alleges that on August 2, 2003, while confined at Five Points Correctional Facility, Claimant realized that some of his personal property was missing.

In support of its motion, Defendant asserts that the claim failed to set forth a cause of action upon which relief can be granted. I agree.

In a motion to dismiss a claim, the pertinent provisions of § 3211(a)(7) of the Civil Practice Law and Rules provide that a ". . . party may move for judgment dismissing one or more causes of action asserted against him on the ground that . . . the pleading fails to state a cause of action . . . ." In such a motion, the movant, here Defendant, is held to have conceded the truth of every fact alleged by the Claimant for purposes of the motion. Determination of the motion, generally, does not rest upon resolution of the ultimate facts, but rather on whether the facts asserted adequately set forth a viable cause of action (see Stukuls v State of New York, 42 NY2d 272, 275; cf. Rovello v Orofino Realty Co., 40 NY2d 633).

There are documents attached to Defendant's motion papers which are neither identified, nor referred to in Counsel's Affirmation. One of these documents is easily identified as the claim in this matter, but the others are more troubling. These other documents, if attached to the claim, and incorporated by reference, could arguably provide sufficient information to state a valid cause of action against Defendant.

Claimant has not opposed Defendant's motion, however, and the Court, rather than speculating on the nature of these documents, is left to refer to the four corners of the claim filed with the Clerk of the Court of Claims in Albany. As stated above, the claim was filed with the Clerk on October 31, 2003. From the minimal facts alleged in the claim, one can only ascertain that Claimant is missing personal property. Claimant does not allege any facts from which it can be discerned what part, if any, Defendant's conduct played in the disappearance of Claimant's property. The claim gives no indication of any act or omission on the part of Defendant upon which a recovery could be based. The claim, therefore, fails to set forth a valid cause of action against Defendant.

Accordingly, for the reasons stated above, it is hereby

ORDERED, that Defendant's motion for dismissal of the claim is granted and the claim is dismissed in its entirety. The Clerk is directed to close the file.

May 5, 2004
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims