New York State Court of Claims

New York State Court of Claims

SIMMONS v. THE STATE OF NEW YORK, #2007-042-528, Claim No. 114255, Motion No. M-74111


Synopsis


This matter is brought before the court by defendant for a motion to dismiss the claim pursuant to CPLR Rule 3211 (a) (7) on the grounds that the claim fails to state a cause of action. The underlying claim seeks damages for personal injuries allegedly sustained by claimant from an attack by a fellow inmate. The court has found that there are no allegations of any negligence on the part of the defendant and therefore defendant’s motion to dismiss the claim for failure to state a cause of action is granted.

Case Information

UID:
2007-042-528
Claimant(s):
CHRISTOPHER SIMMONS, 07-A-1109
Claimant short name:
SIMMONS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114255
Motion number(s):
M-74111
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
CHRISTOPHER SIMMONS, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 30, 2008
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings this motion before the court for an order to dismiss the claim, pursuant to CPLR Rule 3211 (a) (7), on the grounds of failure to state a cause of action. The court has considered the following papers:

  1. Notice of Motion, filed October 11, 2007
  2. Affirmation of Joel L. Marmelstein, Esq., dated October 10, 2007
  3. Affidavit (and cover memo also titled "Affidavit") of Christopher Simmons, claimant, pro se, sworn to October 23, 2007
___________________________________

This matter comes before the court on defendant’s motion to dismiss the claim, pursuant to CPLR Rule 3211 (a) (7), on the grounds that the claim[1] fails to state a cause of action.

The underlying claim seeks damages for personal injuries allegedly sustained by claimant on April 17, 2007 in an attack upon him by a fellow inmate at the Mohawk Correctional Facility.

Defendant argues that the pleading requirements of Court of Claims Act § 11 are jurisdictional in nature and that they require that claimant must set forth at least some factual basis upon which it can be claimed that the State was negligent. Defendant (citing Chung v State of New York, 122 Misc 2d 676, 677 and Patterson v State of New York, 54 AD2d 147 affd 45 NY2d 885) asserts that the failure of the claim to specify defendant’s alleged negligence is a fatal defect.

In opposition, claimant makes two arguments: first, that claims of pro se litigants should be liberally construed, and second, that in his notice of intention to file a claim he had stated that two officers in observational areas did nothing to prevent the assault. However, it is the allegations of the claim that are germane here. The notice of intention to file a claim is not before the court, nor was it filed with the court. The claim deals primarily with the injuries alleged to have been sustained by claimant. At the beginning and end of the pro se claim are references to the circumstances surrounding the incident:

On 4/17/07 at approximately 11:00 a.m. while claimant was walking back to his housing area on the walkway claimant had been the victim of an unprovoked attack from behind by inmate Bashire Gustos #05-A-4498. In which claimant was compelled to defend himself against the attack. The attack had been witness by C.O. S. Shampine of whom ended the altercation.


Claimant had not known his attacker prior to the attack, in that the attack upon claimant had not been foreseeable to prevent another attack and to prevent the cutting of claimant’s face with an unauthorized razor.


Court of Claims Act § 11 (b), in relevant part, provides that “(t)he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed.” The law is well established that the “requirements of . . . Section 11 of the Court of Claims Act are jurisdictional in nature and, therefore, must be strictly construed” (Finnerty v New York State Thruway Authority, 75 NY2d 721, 722, citing with favor, Buckles v State of New York, 221 NY 418, 423 - 424).

The law is also well-established that allegations setting forth the negligence of the defendant are essential to stating a claim (Patterson v State of New York, 54 AD2d 147, affd 45 NY2d 885; Bonaparte v State of New York, 175 AD2d 683). Here there are no allegations whatsoever of any negligence on the part of the defendant. To the contrary, this was an inmate-on-inmate assault, which, according to the claim itself, was halted by the intervention of a correction officer. And, according to the claimant, the attack upon claimant was not foreseeable.

Accordingly, defendant’s motion to dismiss the claim for failure to state a cause of action is granted.



January 30, 2008
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims




[1]. While the moving papers refer to the claim as an attached exhibit, the claim was not appended to the motion. However, in the interests of expediency, and since this is not a motion for summary judgment and the claim is on file with the clerk of the court, the court will consider the filed claim as though appended to the moving papers.