New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2007-031-054, Claim No. 113914, Motion No. M-73847


Synopsis


Defendant’s unopposed motion to dismiss is granted

Case Information

UID:
2007-031-054
Claimant(s):
JOSH BROWN
1 1.The caption has been amended sua sponte to reflect the State of New York as the only proper Defendant.
Claimant short name:
BROWN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended sua sponte to reflect the State of New York as the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113914
Motion number(s):
M-73847
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant’s attorney:
JOSH BROWN, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 19, 2007
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 dismissal of the claim:
1. Defendant’s Notice of Motion, filed August 13, 2007;
2. Affirmation of Heather R. Rubinstein, Esq., dated August 9, 2007, with attached exhibits;
3. Filed Documents: Claim filed July 2, 2007 and Amended Claim filed August 22, 2007. In his claim filed on July 2, 2007, Mr. Brown purports to allege a cause of action for intentional, or perhaps negligent infliction of emotional distress. The claim is far from clear concerning exactly what Defendant did and how Claimant was injured. It appears, however, at least initially, that Claimant requested certain medical records from Defendant and the documents he received in response contained portions of records that did not belong to him. After carefully going through the claim and the amended claim[2] to fill in some of the missing blanks, it appears that the medical records Claimant received were all his, except that they contained entries from a time when Claimant was incarcerated under one or more aliases.

Apparently, the most objectionable, and by far the most numerous, of the improperly produced documents referred to an inmate named “Joyce Brown.” Although the claim indicates that the records are for some other inmate, Defendant indicates, and the amended claim confirms, that Joyce Brown was the name Claimant used when previously incarcerated. Claimant’s request for damages relates not to the fact that the medical records do not pertain to him, but that the name “Joyce Brown” was the name Claimant was using when his mother died in 1994. The sight of this name, therefore, reminds him of his mother’s passing and causes emotional injuries to Claimant.

Defendant asserts that the claim should be dismissed because Claimant has failed to set forth any viable cause of action against Defendant. Claimant has submitted no opposition to Defendant’s motion.

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., Inc., 40 NY2d 633).

Searching the claim, I find no viable cause of action against Defendant. Not only does the claim fail to set forth how Defendant was negligent, the only indication of injury to Claimant is the alleged emotional distress the use of his admitted alias causes him. To the extent that Claimant has alleged that Defendant has intentionally caused him emotional distress, public policy prohibits an action against the State for intentional infliction of emotional distress and, therefore, such a claim 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).

To the extent that Claimant’s allegations of damages could be construed as the result of negligent infliction of emotional distress, Claimant’s allegations are insufficient as a matter of law. As stated by the Appellate Division, Third Department in Dobisky v Rand (248 AD2d 903, 905):
A claim for negligent infliction of emotional distress requires a showing that defendants' conduct unreasonably endangered plaintiffs' physical safety or, as exceptions to this rule, that untruthful information regarding death was transmitted or that a corpse was negligently mishandled (see, Johnson v State of New York, 37 NY2d 378, 381-382).

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.

November 19, 2007
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims



[2].The amended claim was filed on August 22, 2007. At that point, the time in which Claimant could amend his claim as of right had expired and Claimant did not seek or obtain permission from the Court to file an amended claim. The amended claim is useful, however, in understanding what Claimant is attempting to allege in the claim.