New York State Court of Claims

New York State Court of Claims

FLYNN v. THE NEW YORK STATE POLICE, #2007-038-545, Claim No. 113346, Motion Nos. M-73056, M-73057, M-73058, M-73099


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-73056, M-73057, M-73058, M-73099
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael C. Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 25, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


This claim seeks damages for “personal injury both physical and mental, slander deformation [sic] of character, filing a false statement and false arrest.” Three incidents involving claimant and New York State Troopers are recited in the claim: (1) an allegedly false arrest on August 13, 2006; (2) a false statement submitted on October 11, 2006; and (3) a pistol permit hearing that was conducted on December 20, 2006. The claim was initially filed on February 20, 2007, an amended claim was filed on February 26, 2007, and a second amended claim was filed on April 10, 2007. Claimant has filed four motions on the claim, each of which will be addressed in this decision.

Motion No. M-73056 is a motion to dismiss defenses.[1] Such a motion may be made “on the ground that a defense is not stated or has no merit” (CPLR 3211 [b]). “It is well settled that ‘[o]n a motion to dismiss a defense pursuant to CPLR 3211(b), all of defendant’s allegations must be deemed to be true . . .’” (Capital Tel. Co. v Motorola Communications & Elec. Inc., 208 AD2d 1150, 1150 [3d Dept 1994], quoting Grunder v Recckio, 138 AD2d 923 [4th Dept 1988]; 182 Fifth Avenue, LLC v Design Development Concepts, Inc., 300 AD2d 198, 199 [1st Dept 2002]), and “the defendant is entitled to the benefit of every reasonable construction of the pleading” (Arquette v State of New York, 190 Misc 2d 676, 688 [Ct Cl 2001]). “The movant bears the burden of coming forward with sufficient proof to demonstrate that the defense cannot be maintained” (id.; see Vita v New York Waste Serv., LLC, 34 AD3d 559 [2d Dept 2006]). If there is any doubt as to the availability of a defense, it should not be dismissed (see Thy Tran v Avis Rent A Car, Inc., 289 AD2d 731, 732 [3d Dept 2001]).

Neither the claim nor the amended claims filed by claimant clearly articulate the factual bases for the various causes of action asserted therein. Defendant’s verified answer sets forth various common boilerplate defenses. In support of the motion to dismiss the defenses, claimant submits his own affidavit, in which he makes various conclusory assertions that are unsupported by detailed facts or evidentiary support. Applying the standards of review set forth above, only the third defense – assumption of risk – is subject to dismissal.

The first defense alleges contributory negligent or culpable conduct on the part of claimant. Claimant’s affidavit states only that “claimant was not engaged in any culpable conduct.” This is insufficient to sustain claimant’s “burden of coming forward with sufficient proof to demonstrate that the defense cannot be maintained” (Arquette v State of New York, supra, at 688). The second defense alleges negligence or fault or want of care by “some third person or persons” for whose culpable conduct defendant cannot be held liable. Claimant’s contentions that this defense should be dismissed because the third party is unidentified and because a State trooper assisted in restraining claimant are insufficient to demonstrate that the defense is without merit. The fourth defense asserts that the claim fails to state a cause of action against the defendant. Claimant asserts only that he intends to file an amended claim, but does not otherwise demonstrate that the defense is without merit,[2] and thus, the defense will not be dismissed. The fifth defense asserts privileges that render defendant immune from liability. Claimant’s allegation that “the officers in question were not acting in the scope of their duties” does not undermine the defense of immunity if the officers were acting within the scope of their duties. The sixth defense asserts that the claim is untimely. Claimant measures the accrual of his claims from the date of a hearing on December 20, 2006, even though many of the allegations recite injuries that flow from events that occurred on August 13, 2006. The claim was filed on February 20, 2007, more than ninety days after August 13, 2006, and thus, the defense of untimeliness is not so plainly lacking in merit that it should be dismissed. The seventh defense states that this Court lacks jurisdiction over certain named individuals, and claimant’s conclusory allegation that those individuals are brought within the jurisdiction of this Court by virtue of their employment by the State is insufficient to demonstrate a lack of merit in the defense (see Court of Claims Act § 9; Smith v State of New York, 72 AD2d 937, 938 [4th Dept 1979] [“the jurisdiction of the Court of Claims is limited and does not extend to claims against individuals”]).

The third defense invokes “the doctrine of assumption of risk.” That doctrine may operate to either bar or diminish a plaintiff/claimant’s recovery, depending upon whether the assumption of risk was express or implied (see Arbegast v Board of Educ. of S. New Berlin Cent. School, 65 NY 2d 161, 164, 170 [1985]; Mesick v State of New York, 118 AD2d 214, 218-219 [1986]). Generally, however, the doctrine only applies when the claimant/plaintiff is “injured while voluntarily participating in a sporting or entertainment activity” (Comeau v Wray, 241 AD2d 602, 604 [3d Dept 1997]), and when he or she has expressly or impliedly agreed to accept the risks of that activity (see generally Morgan v State of New York, 90 NY2d 471, 482, 484 [1997]) or is voluntarily participating in an inherently risky activity in which the condition or event that caused the injury is known, apparent, or reasonably foreseeable (see Turcotte v Fell, 68 NY2d 432, 439-440 [1986]; Walter v State of New York, 235 AD2d 623 [1997]). The verified answer includes no facts – even if given a reading most favorable to defendant – suggesting that claimant’s alleged injuries were sustained in the course of a sporting or entertainment activity or that claimant was voluntarily participating in an inherently risky activity. Indeed, the claim alleges that defendant falsely arrested claimant and made statements about him that were false or slanderous. This Court finds no precedent for applying the doctrine of assumption of risk to such a claim (cf. Comeau vWray, supra [assumption of risk inapplicable to deliveryman who descended steps with knowledge of their dangerous condition]; Walter v State of New York, supra [doctrine inapplicable to workman who admitted awareness of hazardous condition]). Accordingly, claimant’s Motion No. M-73056 will be granted in part and defendant’s third defense will be dismissed.

Motion No. M-73058 has been noticed as a “motion not to dismiss claim.” The necessity of such a motion is hardly clear, especially in the absence of a motion to dismiss by defendant. Claimant’s submission in support of the motion is addressed to the defenses set forth in defendant’s answer, and is substantively identical to the document submitted in support of Motion No. M-73056. The motion “not to dismiss” is lacking in procedural propriety and independent substantive merit, and will therefore be denied.

Motion No. M-73057 seeks permission to submit a late claim. Inasmuch as the instant claim has been filed and is pending in this Court, and insofar as defendant has not made a motion to dismiss the claim on the grounds that it was not timely filed or served, the motion for permission to file a late claim will be denied as unnecessary.

Motion No. M-73099 seeks an “extension of time for filing claims” pursuant to Court of Claims Act § 10 (6), and requests that the Court render an order that would allow claimant to file claims based upon unspecified conduct by defendant that occurred during the period of April 4, 2006 through April 4, 2007. Such generalized relief is not authorized by Court of Claims Act § 10 (6), which allows a potential claimant to seek permission to file and serve a late claim that arises from a specific alleged wrong (see generally Court of Claims Act § 10). Absent allegations addressed to a particular incident, the Court is unable to consider the factors recited in Court of Claims Act § 10 (6). To the extent the documents appended to claimant’s affidavit set forth various specific incidents of alleged misconduct by New York State Troopers, those incidents are addressed in other claims that have been filed by claimant. Further, as noted above, inasmuch as the instant claim is pending before the Court and is not the subject of a motion to dismiss on timeliness grounds, the motion is unnecessary.

Accordingly, it is ORDERED that Motion No. M-73056 is GRANTED IN PART and defendant’s third defense in Claim #113346 is dismissed, and Motion No. M-73056 is DENIED in all other respects, and it is further ORDERED that Motion Nos. M-73057, M-73058 and M-73099 are DENIED.

June 25, 2007
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim # 113346, filed February 20, 2007;

(2) Amended Claim # 113346, filed February 26, 2007;

(3) Second Amended Claim # 113346, filed April 10, 2007;

(4) Verified Answer, filed February 22, 2007;

(5) Verified Answer, filed April 2, 2007;

(6) Notice of Motion (M-73056), dated February 25, 2007;

(7) “Affidavit in Support of Motion to Dismiss Defenses” of Bruce C. Flynn, unsworn and dated

February 25, 2007;

(8) Notice of Motion (M-73057), dated February 24, 2007;

(9) “Affidavit in Support of Motion for Submitting Late Claim” of Bruce C. Flynn, unsworn and dated February 25, 2007;

(10) Notice of Motion (M-73058), dated February 25, 2007;

(11) “Affidavit in Support of Motion Not to Dismiss Claim” of Bruce C. Flynn, sworn to

February 26, 2007;

(12) Notice of Motion (M-73099), dated February 25, 2007;

(13) “Affidavit in Support of Motion for Extension of Time” of Bruce C. Flynn, unsworn and dated March 25, 2007, with exhibits;

(14) Affidavit in Opposition (M-73099), sworn to April 3, 2007.

[1]. Although defendant filed a verified answer in response to the second amended claim, claimant’s motion is addressed to the defenses set forth in the initial answer. This decision will address the arguments as set forth in the motion.
[2]. It is noted that the second amended claim filed after the instant motion does not demonstrate that the defense should be dismissed. The second amended claim is substantively identical to the initial and first amended claim, and makes certain allegations about acts of a “Trooper Kenyon.” None of the claims allege that Trooper Kenyon was acting within the scope of his or her employment when the alleged false arrest or false statement was made, or when he or she allegedly “slammed the claimants [sic] right shoulder to [a] gurney,” the conduct that gives rise to the claim.