New York State Court of Claims

New York State Court of Claims

TAFARI v. THE STATE OF NEW YORK, #2004-031-156, Claim No. 109301, Motion Nos. M-68843, M-68630


Synopsis


Claim for medical neglect and violation of certain federal statutes fails to state a cause of action. Defendant's motion to dismiss claim is granted. Claimant's motion to strike affirmative defenses denied as moot

Case Information

UID:
2004-031-156
Claimant(s):
INJAH E. TAFARI
Claimant short name:
TAFARI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109301
Motion number(s):
M-68843, M-68630
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
INJAH E. TAFARI, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 23, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 to 7, were read on motion by Defendant for an order dismissing the claim, and on motion by Claimant to strike certain affirmative defenses asserted in Defendant's Answer:
1. Defendant's Notice of Motion (M-68630), filed June 14, 2004;
2. Affirmation of Heather R. Rubinstein, Esq., dated June 10, 2004, with attached exhibits;
  1. Claimant's Notice of Motion (M-68843), filed July 12, 2004;
4. Claimant's unsworn statement, dated June 15, 2004;
5. Claimant's unsworn "Addendum Affidavit," dated July 19, 2004;
6. Claimant's unsworn "Second Addendum Affidavit," dated July 22, 2004;
7. Filed Papers: Claim and Answer. Defendant has filed a motion for dismissal of the claim and Claimant has filed a motion requesting that the Court strike certain affirmative defenses asserted in Defendant's Answer. The claim, filed on May 3, 2004, alleges that between January 16, 2004 and April 6, 2004, health care professionals at Auburn Correctional Facility intentionally withheld from Claimant a new hearing aid. Along with the hearing aid, Claimant also alleges that he requested: 1) a qualified sign language interpreter; 2) a telephone amplifier; 3) a closed caption tv/vcr; 4) a sound amplification system; 5) a notification system; 6) auxiliary aids; and 7) preferred seating or a transfer to a different facility. Claimant alleges that Defendant's refusal to provide these items, and its delay in providing the new hearing aid, violate his rights under the Americans with Disabilities Act and the Rehabilitation Act of 1973. He also alleges that he has suffered emotional trauma as a result of Defendant's actions.

As Defendant's motion is dispositive, I will address it first. In support of its motion, Defendant asserts that the claim failed to set forth a cause of action upon which relief can be granted, arguing that the Court of Claims lacks jurisdiction over claims alleging violations of the identified federal statutes.

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).

Reviewing the four corners of this claim, I find that Claimant has failed to set forth a cause of action for which relief can be granted by this Court. The Court of Claims has subject matter jurisdiction only over claims in which the essential nature of the claim is to recover money damages (Safety Group No. 194--New York State Sheet Metal Roofing & A.C. Contrs. Assn. v State of New York, 298 AD2d 785). For this reason, as a threshold question, the Court must determine "[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim" (Matter of Gross v Perales, 72 NY2d 231, 236). Here, I conclude that, although Claimant has asked for money, his essential claim is equitable in nature. What he really seeks is an order compelling Defendant to provide him with the seven items described above. Claimant's request for money damages is incidental to his complaint that these items he seeks were improperly denied. Assuming, arguendo, the existence of a breach of a duty, Claimant has failed to set forth in the claim specifically how he was injured by not receiving the items he mentions and, as a result, his claim fails to comply with Court of Claims Act § 11 (Tafari v State of New York, Ct Cl, April 3, 2003 [Claim No. 103164, Motion No. M-65946], Minarik, J., UID # 2003-031-013).

With respect to Claimant's allegation that Defendant's actions constituted a violation of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act of 1973, the weight of authority indicates that these statutes do not create a private right of action for money damages (see Lugo v St. Nicholas Associates, 2 Misc 3d 212 and cases cited therein). In any event, the ADA (see 42 USC 12101 et seq.) prohibits discrimination "on the basis of disability." The Rehabilitation Act prohibits discrimination against any "otherwise qualified [handicapped] individual . . . under any program or activity receiving Federal financial assistance" (29 USC § 794). Claimant does not allege that he was discriminated against because of his alleged disability, he merely implies that he did not receive proper treatment for his disability. He is, in essence, asserting that he was discriminated against because of his hearing loss, and that, but for his hearing loss, he is otherwise eligible to receive care for his hearing loss. Of course this argument is illogical.

I also note that public policy prohibits an action against the State for intentional infliction of emotional distress and, therefore, Claimant's argument that Defendant's actions have caused him emotional distress is not cognizable in this Court (Brown v State of New York, 125 AD2d 750, lv dismissed 70 NY2d 747; Wheeler v State of New York, 104 AD2d 496; De Lesline v State of New York, 91 AD2d 785, lv denied 58 NY2d 610).

Accordingly, for the reasons stated above, I find that the claim in this matter fails to state a cause of action against Defendant. It is hereby

ORDERED, that Defendant's motion for dismissal of the claim is granted and the claim is dismissed in its entirety. Claimant's motion to strike Defendant's affirmative defenses is denied as moot.

November 23, 2004
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims