5,6 Filed Papers: Claim, Answer
This claim arises from an incident occurring on September 29, 2006 when
claimant arrived at Downstate Correctional Facility Reception Center. During
intake procedures, Mr. Simmons asserts he was ordered to have his hair cut and
his beard shaved, despite his possession of a court order exempting him from
same. He asserts two causes of action in his claim, sounding in negligence and
intentional tort. The claim was served and filed pursuant to this Court’s
prior Decision and Order granting claimant permission to serve and file a late
claim. [See Simmons v State of New York, UID # 2007-030-573,
Claim No. None, Motion No. M-73791 (Scuccimarra, J., October 23, 2007)].
Defendant asserts three (3) defenses in its answer, namely claimant’s own
culpable conduct in the form of contributory negligence and assumption of risk,
absolute and qualified immunity, and a lack of personal and subject matter
jurisdiction based upon claimant’s alleged failure to serve the claim by
certified mail, return receipt requested within the time constraints of this
Court’s prior Decision and Order granting late claim relief. [See
Simmons v State of New York, supra].
A defense is raised in an answer to provide adequate notice to the claimant of
issues of law or fact that the defendant may raise at trial or in later motion
practice. Cipriano v City of New York, 96 AD2d 817 (2d Dept 1983).
Indeed, Civil Practice Law and Rules §3018(b), concerning responsive
pleadings, provides in pertinent part that a “. . . party shall plead all
matters which if not pleaded would be likely to take the adverse party by
surprise or would raise issues of fact not appearing on the face of a prior
pleading such as . . . collateral estoppel, culpable conduct . . . or statute of
limitation. The application of this subdivision shall not be confined to the
A motion to dismiss such defenses may be made on the ground that “. . . a
defense is not stated or has no merit.” Civil Practice Law and Rules
§3211(b). When evaluating such a motion, all of defendant’s
allegations must be deemed to be true and defendant is entitled to all
reasonable inferences to be drawn from the proof submitted. Capital Telephone
Co. v Motorola Communications and Electronics, Inc., 208 AD2d 1150 (3d Dept
1994); Grunder v Recckio, 138 AD2d 923 (4th Dept 1988); 182 Fifth
Avenue, LLC v Design Development Concepts, Inc., 300 AD2d 198 (1st Dept
2002); Arquette v State of New York, 190 Misc 2d 676, 688 (Ct Cl 2001).
It is the movant who has the burden of coming forward initially and
demonstrating that the defense cannot be maintained. Arquette v State of New
York, supra at 688 (Ct Cl 2001).
“. . . ‘If there is doubt as to the availability of a defense, it
should not be dismissed’(Duboff v Board of Higher Educ. of City of
New York, 34 AD2d 824 [2d Dept 1970]).”
In this case, claimant has met his burden of showing that the claim was served
upon the Attorney General’s Office on January 2, 2008 by certified mail,
return receipt requested, as shown on the photocopy of the green certified mail
receipt claimant included with his motion papers. [See Affirmation in
Support of Motion to Dismiss Defenses by Alphonso Simmons, claimant,
¶¶4, 14, Exhibit A]. The Court’s directive had been that such
claim be served and filed within thirty (30) days of December 5, 2007.
[See Simmons v State of New York, supra]. Accordingly,
this defense cannot be maintained because the Court has personal jurisdiction
over the defendant and of the subject matter, namely a claim for money damages
against the State of New York. See generally Court of Claims Act
§§9; 10 and 11.
The causes of action made out by the facts alleged in the proposed claim would
be characterized as negligence or battery, stemming from DOCS’ alleged
failure to follow its own regulations with regard to the administration of
haircuts and policies regarding religious exemptions and from the alleged lack
of consent to the haircut. To establish a prima facie case of negligence
the following elements must exist: (1) that defendant owed the claimant a duty
of care; (2) that defendant failed to exercise proper care in the performance of
that duty; (3) that the breach of the duty was a proximate cause of
claimant’s injury; and (4) that such injury was foreseeable under the
circumstances by a person of ordinary prudence.
Battery is the intentional physical contact with another person without that
person’s consent. Coopersmith v Gold, 172 AD2d 982, 984 (3d Dept
1991); Mason v Cohn, 108 Misc 2d 674 (Sup Ct, NY County 1981).
See Clayton v Keeler, 18 Misc 488 (Sup Ct, NY County 1896).
With regard to the two remaining defenses, they have the appearance of merit
sufficient to survive this motion to dismiss same, given that they adequately
alert claimant to issues of law or fact that might arise at trial based on the
causes of action asserted. With regard to failure to follow regulatory protocols
this could arguably present “discretion” issues that may bear some
aspect of the immunity cloak. Thus, there may be some aspect of governmental
immunity that could apply. Similarly, claimant’s role in contributing to
his own situation is an issue of fact. Raising such culpable conduct is an
appropriate defense and has the appearance of merit. In any event, merely
submitting various documents - as the claimant has - does not conclude issues
that require evaluation at trial under the rules of evidence.
Based on the foregoing, claimant’s motion [M-74779] to dismiss the
defenses is granted in part and denied in part. Defendant’s third defense
concerning the Court’s purported lack of jurisdiction is hereby stricken,
but the two remaining defenses, asserting claimant’s own culpable conduct
and defendant’s immunity must await a plenary trial of the matter.