New York State Court of Claims

New York State Court of Claims

SIMMONS v. THE STATE OF NEW YORK, #2008-030-545, Claim No. 114664, Motion No. M-74779


Claimant’s motion to dismiss defenses granted with respect to jurisdiction, denied with regard to contributory negligence and governmental immunity. Claimant established that claim served by certified mail, return receipt requested within time constraints of order granting late claim relief. Any culpable conduct on claimant’s part is an issue of fact awaiting plenary trial of the matter. Failure to follow regulatory protocols with regard to the administration of the DOCS reception haircut and shave involves discretionary conduct which may thus implicate immunity issues

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):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
August 5, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion to dismiss defenses

brought pursuant to Civil Practice Law and Rules §3211(b):

1,2 Notice of Motion; Affirmation in Support of Motion to Dismiss Defenses by Alphonso Simmons, Claimant and attached exhibit

  1. Affirmation by Dewey Lee, Assistant Attorney General
  1. Rebuttal by Alphonso Simmons, Claimant

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 instances enumerated.”

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]).” [Id.].

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.

August 5, 2008
White Plains, New York

Judge of the Court of Claims