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
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
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.