New York State Court of Claims

New York State Court of Claims

MORALES v. THE STATE OF NEW YORK et al., #2009-038-525, Claim No. 111817, Motion No. M-75926


Defendant’s motion to dismiss granted; claim was untimely with respect to one alleged inmate-on-inmate assault, was inadequately pled (CPLR 3013) with respect to second alleged inmate-on-inmate assault because it did not allege that it was reasonably foreseeable that claimant would be assaulted by the other inmate, and that part of claim arising from conduct of disciplinary hearing was dismissed because money damages flowing from procedural violations committed by defendant would be incidental to relief available in an article 78 proceeding.

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:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 11, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an individual formerly incarcerated in a State correctional facility, filed this claim alleging that he was the victim of inmate-on-inmate assaults on October 4, 2005 and on November 30, 2005. Defendant moves to dismiss the claim, asserting a lack of jurisdiction on the first incident because the claim was not timely filed and served, and asserting various grounds for dismissal of the claim with respect to the second incident. Claimant has not submitted opposition to the motion. Turning first to defendant’s motion for partial dismissal of the claim on jurisdictional grounds, Court of Claims Act sections 10 and 11 require that this claim for negligence and intentional tort be filed with the Clerk of the Court of Claims and served upon the Attorney General within 90 days after accrual of the claim. It is well established that the filing and service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]) and that the failure to comply with those requirements is a jurisdictional defect requiring dismissal of the claim (see id.; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]). The first incident that is alleged in the claim occurred on October 4, 2005, and 90 days thereafter was January 2, 2006. The claim was not served on the Attorney General until January 6, 2006, and was not filed with the Clerk of the Court of Claims until January 9, 2006. Thus, the claim was untimely with respect to the earlier incident, and the claim as it pertains to that incident must be dismissed on jurisdictional grounds.

Defendant moves to dismiss the claim with respect to the second cause of action on the ground that the pleading does not state the material elements of a cause of action for damages from an inmate-on-inmate assault.[1] CPLR 3013 requires that the pleading assert, among other things, the material elements of a cause of action (see also Peri v State of New York, 66 AD2d 949 [3d Dept 1978], affd 48 NY2d 734 [1979]). One element of a cause of action for an inmate-on-inmate attack is that the attack was reasonably foreseeable (see Sanchez v State of New York, 99 NY2d 247, 253, 256 [2002]; see Smart v State of New York, UID #2007-029-053, Claim No. 98024, Mignano, J. [Dec. 21, 2007]; Green v State of New York, UID # 2004-030-009, Claim No. 105542, Scuccimarra, J. [Apr. 7, 2004]). Here, the claim does not assert that the attack on claimant was reasonably foreseeable, nor does it set forth facts that would support such a contention. Indeed, this Court has already held that a proposed claim that was filed by claimant, which is identical to the instant claim, failed to allege that the assault on claimant by another inmate was reasonably foreseeable (see Morales v State of New York, UID #2006-032-058, Motion No. M-71256, Hard, J. [July 10, 2006]). Accordingly, the part of defendant’s motion that seeks dismissal of the cause of action arising from the assault that occurred on November 30, 2005 must be granted.

Finally, the claim makes allegations about the conduct of the tier hearing that was held to determine misbehavior charges that were asserted against claimant as a result of the October 4, 2005 fight. To the extent that claimant seeks monetary damages arising from allegedly improper procedures during the hearing, the claim must be dismissed because review of an administrative proceeding and determination is properly sought via petition to Supreme Court pursuant to article 78 of the Civil Practice Law and Rules, and money damages claimed as a result of violations of defendant’s rules of procedure is incidental relief obtainable in that court (see Matter of Salahuddin v Connell, 53 AD3d 898 [3d Dept 2008]); Hoffman v State of New York, 42 AD3d 641 [3d Dept 2007]).[2]

For the foregoing reasons, it is

ORDERED, that Motion No. M-75926 is GRANTED, and Claim No. 111817 is DISMISSED in its entirety.

March 11, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 111817, filed January 9, 2006;

(2) Verified Answer, filed February 17, 2006;

(3) Notice of Motion, dated November 18, 2008;

(4) Affirmation of Paul F. Cagino, AAG, dated November 18, 2008, with Exhibits A-D.

[1]. Defendant’s contention that the claim must be dismissed for want of prosecution pursuant to CPLR 3216 is without merit, as defendant has offered no evidence of its compliance with that provision’s prerequisites to making a motion to dismiss (see CPLR 3216 [b]; compare 22 NYCRR § 206.10 [g] [authorizing a discretionary dismissal for default in attendance at a court conference]).
[2]. The Court rejects defendant’s argument that this part of the claim must be dismissed on the ground of immunity, because that doctrine applies to the quasi-judicial, discretionary determinations of the Department of Correctional Services (see Arteaga v State of New York, 72 NY2d 212, 214 [1988]). Defendant is shielded from liability where defendant’s employees “act under the authority of and in full compliance with the governing statutes and regulations (id. [emphasis supplied]), but not where, as here, it is alleged that defendant violated its own rules of procedure.