New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2008-015-044, Claim No. 114683, Motion Nos. M-74616, M-74719


Defendant's motion to dismiss claim was granted in part and denied in part with leave to renew upon the completion of discovery. Claimant's motion to compel discovery was denied as premature.

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-74616, M-74719
Cross-motion number(s):

Claimant’s attorney:
Jose Rivera, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Kent B. Sprotbery, Esquire Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 3, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

Defendant moves to dismiss the instant claim for failure to state a cause of action pursuant to CPLR 3211 (a) (7) (M-74616). Claimant, an inmate proceeding pro se, moves to compel discovery pursuant to CPLR 3124 (M-74719). The claim alleges the following:
"4. December 13, 2007, while at the Great Meadow Correctional Facility, in preparation for a bus transfer from Great Meadow Correctional Facility to Clinton Correctional Facility . . . claimant was placed in full restraints (i.e. leg shackles, handcuffs with black box and connected waist chain) by [a correction officer].
5. Claimant was placed in these full restraints at approximately 10:00 a.m. and he was made to remain in these full restraints until 11:00 p.m. that night; thirteen (13) hours duration.

6. Prior to being placed on the bus to begin the trip, and while still in full restraints, claimant was fed a bag lunch consisting of 2 slices of bologna, 2 slices of cheese, 4 slices of bread, 2 cookies and 2 small juices. Claimant was served this bag lunch at 11:00 a.m., his garbage was collected at approximately 11:10 a.m. and he was not fed again until 9:00 p.m. when he was served a bag dinner of 2 slices of cold turkey, 2 slices of cheese, 4 slices of bread, 1 biscuit and 2 small juices.

7. Claimant was made to remain without food or drink from 11:10 a.m. to 9:00 p.m., approximately ten (10) hours. The trip bus is not equipped with any running water, and no water or any other drink was supplied to claimant during the trip other than mentioned above."
In addition to the above, the claim also alleges that the claimant was forced to sit next to an overweight inmate (paragraphs 7 and 9), that he was "further hindranced" because the seats of the bus were too small (paragraph 10) and that his arrival at Clinton Correctional Facility was unnecessarily delayed due to "the bus driver's extremely slow driving" (paragraph 13).

Defendant argues in support of its motion that “[t]aking all of claimant’s allegations as true for the purposes of this motion, claimant’s allegations . . . do not establish a breach of duty owed to him by defendant” (see affirmation of Kent B. Sprotbery dated February 29, 2008, ¶ 6). In opposition to the defendant’s motion the claimant indicates that “facts may exist that establishes a duty upon the defendant but these are under the power of the defendant, and, therefore, I ask that the court order a continuance until a disclosure is completed, pursuant to CPLR 3211 (d)” (see claimant’s affidavit in opposition dated March 14, 2008, ¶ 2). Indeed, on February 19, 2008, prior to the time the defendant moved to dismiss the claim, claimant served “Claimant’s Demand For Discovery and/or Inspection” and “Claimant’s First Request For Interrogatories and Admissions”. Among the documents demanded were various Directives bearing upon the procedures to be employed in the transportation of prisoners. Rather than responding to the claimant's demands, on February 29, 2008, the defendant moved to dismiss the claim for failure to state a cause of action. Claimant thereafter moved to compel a response to his discovery demands.

On a motion to dismiss a claim pursuant to CPLR 3211 (a) (7) the court is required to “accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). Thus, the determination is made by reference to whether “the proponent of the pleading has a cause of action, not whether he has stated one” (id. at 88).

It is settled that “[t]he State owes a duty to provide for the health and care of inmates...” (Levin v State of New York, 32 AD3d 501, 502 [2006]. It is also settled that the State may be found liable for ministerial neglect where its employees fail to comply with governing rules and regulations or an institution’s own administrative procedures and protocols (Kagan v State of New York, 221 AD2d 7, 10 [1996]; see also Hunt v State of New York, 36 AD3d 511 [2007] [an institutional custom or practice may constitute a governing rule or standard]).

CPLR 3211 (d) specifically states the following:
Facts unavailable to opposing party. Should it appear from affidavits submitted in opposition to a motion made under subdivision (a) or (b) that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion, allowing the moving party to assert the objection in his responsive pleading, if any, or may order a continuance to permit further affidavits to be obtained or disclosure to be had and may make such other order as may be just.
Where, as here, the relevant facts essential to justify opposition to the motion may exist and are in the exclusive control of the party seeking dismissal, denial of the motion is proper (see Banham v Stanley & Co., 178 AD2d 236 [1991]). The directives sought by the claimant in his demand were not submitted on the motion. To the extent the directives establish procedures regarding the restraint and/or feeding of inmates during transport the facts alleged in this case, full restraints for thirteen hours and without food or drink for ten hours (cf. 9 NYCRR § 7009.6), may well state a valid cause of action. At this early stage of the proceedings and given the need for certain further discovery the defendant's motion to dismiss those portions of the claim pertaining to the restraint and feeding of the claimant on December 13, 2007 for failure to state a cause of action is denied with leave to renew upon the completion of discovery. Those portions of the claim alleging claimant was forced to sit next to an overweight inmate, the bus seats were too small and that claimant's arrival at Clinton Correctional Facility was delayed due to the bus driver's slow driving do not state a cause of action cognizable in the Court of Claims and are therefore dismissed.

Lastly, notwithstanding the defendant’s contrary argument, the Court is unpersuaded that the claim fails to sufficiently set forth either the damage or injuries claimed to have been sustained as required by Court of Claims Act § 11 (b). The damage or injuries allegedly sustained from thirteen hours in restraints and ten hours without food or water are reasonably apparent and adequately set forth in the claim. Further particularization may be sought in a demand for a bill of particulars (see CPLR 3041, 3042, 3043: 22 NYCRR § 206.1).

Regarding the claimant’s motion to compel discovery, the demands were served on February 19, 2008 and defendant’s motion, which had the effect of staying discovery, was served on February 29, 2008. Since there remains time for the defendant to respond to the demands (see CPLR 3120 [2]; 3133 [a]), claimant’s motion to compel discovery is premature at this time. Obviously, in light of the decision herein, only those demands and interrogatories relevant and material to the issue of claimant's restraint and feeding during the bus trip need be addressed by the defendant by way of response or objection.

Based on the foregoing, the defendant’s motion to dismiss the claim (Motion No. M-74616) is granted in part and denied in part with leave to renew upon the completion of discovery. The claimant’s motion to compel discovery (Motion No. M-74719) is denied as premature.

June 3, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

M- 74616
  1. Notice of motion dated February 29, 2008;
  1. Affirmation of Kent B. Sprotbery dated February 29, 2008;
  2. Affidavit of Jose Rivera sworn to March 18, 2008.

M- 74719

  1. Notice of motion dated March 18, 2008;
  2. Affidavit of Jose Rivera sworn to March 18, 2008 with exhibits;
  3. Affirmation of Kent B. Sprotbery dated March 25, 2008.