New York State Court of Claims

New York State Court of Claims

FUENTES v. THE STATE OF NEW YORK, #2008-015-023, Claim No. 114272, Motion No. M-74349


Synopsis


In a bailment claim, the claimant's motion to dismiss the defendant's affirmative defenses and for summary judgment was granted only to the extent of dismissing defenses which related to the failure to itemize damages and exhaust administrative remedies and was otherwise denied.

Case Information

UID:
2008-015-023
Claimant(s):
JESUS FUENTES
Claimant short name:
FUENTES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114272
Motion number(s):
M-74349
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Jesus Fuentes, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 25, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, moves to dismiss the defenses asserted in defendant’s answer pursuant to CPLR 3211 (b) and/or for summary judgment pursuant to CPLR 3211 (c). This bailment claim filed on September 24, 2007 asserts a cause of action for damage to a typewriter and radio-cassette unit which allegedly occurred after claimant's property was packed in draft bags and delivered into the defendant’s possession for safekeeping. The claim alleges that claimant was transferred from Great Meadow Correctional Facility to Upstate Correctional Facility where he was confined to the special housing unit and thereafter to Clinton Correctional Facility where his property was returned to him on April 11, 2007 and April 12, 2007, at which times the damage to the typewriter and radio-cassette unit was discovered. The claim alleges that an administrative claim was filed and denied on May 29, 2007 and that an appeal from the denial of the claim was denied on September 6, 2007 (see claim ¶ 2 [vii][viii]).

The defenses raised in the defendant’s answer, all of which the claimant moves to dismiss, include: (1) that the negligence or culpable conduct of the claimant contributed to the damages; (2) if negligence or fault other than that of the claimant caused or contributed to the damages, it was the negligence or fault of some third person for whose conduct the defendant is not responsible; (3) the claim fails to comply with section 11 of the Court of Claims Act and section 206.6 (b) of the Uniform Rules for the Court of Claims by failing to itemize the damages or injuries claimed; (4) that attachment of the exhibits to the claim was improper and the claimant failed to exhaust his administrative remedies as required by Court of Claims Act § 10 (9) before filing the instant claim; and (5) that if the defendant is liable at all, it is liable only to the extent that the property was owned and rightfully possessed by the claimant.

Upon a motion to dismiss affirmative defenses pursuant to CPLR 3211 (b) the claimant bears the burden of demonstrating that the defenses are without merit as a matter of law (see Vita v New York Waste Servs., LLC, 34 AD3d 559 [2006]; Santilli v Allstate Ins. Co., 19 AD3d 1031 [2005]). In evaluating such a motion, “a defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed .... If there is any doubt as to the availability of a defense, it should not be dismissed” (Warwick v Cruz, 270 AD2d 255, 255 [2000] [citations omitted]; see also Brodeur v Hayes, 305 AD2d 754 [2003]). Guided by these principles, the Court finds that the claimant failed to meet his burden of demonstrating that the defendant’s defenses numbered “First”, “Second” and “Fifth” lack merit.

The “First” and “Second” defenses concerning the negligence or culpable conduct of the claimant or third persons for whose conduct the defendant is not responsible are proper pursuant to CPLR article 14. The issue of contributory negligence or the negligence of others “is a jury question in all but the clearest cases” (Suarez v State of New York, 14 Misc 3d 1230[A] [Ct Cl 2006], quoting MacDowall v Koehring Basic Constr. Equip., 49 NY2d 824, 827 [1980]). Here, the Court is unable to determine as a matter of law the absence of negligence on the part of either the claimant or others for whose conduct the defendant is not responsible. The claimant’s motion is therefore denied with respect to the “First” and “Second” defenses raised in the defendant’s answer.

The claimant also failed to meet his burden of proof with respect to the dismissal of the defendant’s “Fifth” defense regarding the ownership and rightful possession of the property. As there may be doubt as to the availability of this defense, it should not be dismissed (Warwick v Cruz, supra ; Brodeur v Hayes, supra).

A different conclusion is reached, however, with respect to the defendant’s “Third” and “Fourth” defenses. The pleading requirements of Court of Claims Act § 11 (b) include the requirement that the claim set forth the “the items of damage or injuries claimed to have been sustained” and it is well settled the State’s waiver of immunity from suit is contingent upon a claimant’s compliance with the pleading requirements of this section (Lepkowski v State of New York, 1 NY3d 201, 206 [2003]). The guiding principle in determining the sufficiency of the pleading is whether or not the allegations are sufficiently definite " 'to enable the State ... to investigate the claim[s] promptly and to ascertain its liability under the circumstances, ... ' " (id. at 207, quoting Heisler v State of New York, 78 AD2d 767, 767 [1980]). Here, the claim sufficiently described the two items of property which were allegedly damaged and the total sum claimed (compare Green v State of New York, UID 2005-015-019, Claim No. 109511 [Ct Cl June 10, 2005] Collins, J. [holding that the failure to provide any information in the claim identifying the lost or damaged items and their value rendered the claim jurisdictionally defective] and Garvey v State of New York, UID 2006-032-054, Claim No. 111337 [Ct Cl June 23, 2006] Hard, J. [holding that a claim satisfied the pleading requirements of the Court of Claims Act where, although claimant did not describe the contents of the bags which he claimed were lost, he did identify that the property bags were missing]). The claim states that “[a] copy of the ‘Inmate Claim Form’ is annexed hereto” (claim ¶ 2 [vii]). Review of the claim filed with the Clerk of the Court reflects that the Inmate Claim Form was indeed attached to the filed claim and the defendant does not indicate that the served claim was any different. The claim seeks damages in the total sum of $222.00 and the Inmate Claim Form attached to the claim itemizes the damages for the typewriter and the radio-cassette player in the amounts of $187.00 and $35.00, respectively.

Such an attachment is expressly authorized by the Uniform Rules for the Court of Claims (22 NYCRR § 206.6 [b][1]). Accordingly, the Court finds that the claim satisfied the pleading requirements of both Court of Claims Act § 11 (b) and 22 NYCRR § 206.6 [b] and the "Third" and "Fourth" defenses asserted in the answer are, therefore, dismissed.

To the extent the defendant’s “Fourth” defense makes reference to the claimant’s failure to exhaust administrative remedies, it lacks merit. Claimant exhausted his administrative remedies on September 6, 2007 when his appeal to the Superintendent was denied (see 7 NYCRR 1700.3).

To the extent the claimant seeks summary judgment, the motion is denied. It is well established that " 'summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue' " (Rotuba Extruders, v Ceppos, 46 NY2d 223, 231 [1978][citation omitted]). Claimant failed to establish, as was his burden, that the property he claims was damaged was owned and lawfully possessed by him and the value of the property (see generally, Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Additionally, the defendant submitted in opposition to the motion investigatory reports indicating that the property was already damaged when it was delivered into the defendant’s possession for shipment (see defendant’s Exhibit A).

Based on the foregoing, the claimant’s motion is granted only to the extent of dismissing the defendant’s “Third” and “Fourth” defenses asserted in its answer and otherwise denied.



March 25, 2008
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court Considered the following papers:
  1. Notice of motion dated December 17, 2007;
  2. Affidavit of Jesus Fuentes sworn to December 17, 2007 with exhibits;
  3. Affirmation of Paul F. Cagino dated January 4, 2008 with exhibit;
  4. Reply affidavit of Jesus Fuentes sworn to January 14, 2008.

[1].22 NYCRR § 206.6 (b) provides that "there shall be included in each claim, or attached thereto, a schedule showing in detail each item of damage claimed and the amount of such item". The rule was amended effective January 31, 2008 to demand compliance "[t]o the extent required by Court of Claims Act § 11 (b)".