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
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
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.