Claimant's motion for partial summary judgment was denied and defendant's cross motion dismissing the amended claim was granted as it was filed without leave of court. To the extent defendant also sought dismissal of the original claim on the grounds it failed to meet the pleading requirements of Court of Claims Act § 11 (b), the motion was denied as it alleged all of the required particulars with respect to a bailment cause of action.
|Claimant(s):||LAUREN A. SMITH|
|Claimant short name:||SMITH|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Lauren Smith, Pro Se|
|Defendant's attorney:||Honorable Barbara D. Underwood, Attorney General
By: Christina Calabrese, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 11, 2018|
|See also (multicaptioned case)|
Claimant, proceeding pro se, moves for partial summary judgment on the issue of liability pursuant to CPLR 3212. The defendant cross-moves for summary judgment dismissing the claim on the grounds the amended claim was filed without leave of court, and the original claim fails to comply with the pleading requirements of Court of Claims Act § 11 (b).
In his claim, filed January 5, 2016, claimant alleges that on July 6, 2015 he was assaulted by correction officers while on his way to the recreation yard at Great Meadow Correctional Facility. Thereafter, claimant was taken to the prison clinic where he was again allegedly assaulted by correction officers. The claim asserts he later discovered that certain items of his personal property were missing when he was escorted from the Special Housing Unit (SHU) to the property room to inventory his property on July 10, 2015. The claim further alleges the claimant discovered that the clothes he had been wearing on the date of the July 6th incident were missing when he inventoried his property at Upstate Correctional Facility on August 1, 2015. Claimant indicates on the second page of his original claim that "[t]his is a claim . . . to recover damages for injury to or loss of personal property and served and filed within 120 days of the exhaustion of claimant's administrative remedies" (defendant's Exhibit B, p. 2). Although the claim itself does not allege the total sum claimed as damages, attached to the claim are the Inmate Claim forms used to pursue his administrative remedy in the amounts of $517.31 for the loss of the property discovered missing on July 10, 2015, and $81.79 for the loss of the property which he discovered missing on August 1, 2015.
On or about January 22, 2016, defendant served an answer to the claim in which a myriad of defenses were raised, including that the claim fails to meet the pleading requirements of Court of Claims Act § 11 (b).
On May 23, 2016 claimant filed an amended claim, which was served by certified mail, return receipt requested, on May 26, 2016. The amended claim sets forth causes of action for assault and battery and wrongful confinement, as well as a cause of action for bailment arising from the loss of claimant's personal property. Defendant served an answer to the amended claim raising as defenses, inter alia, the claimant's failure to obtain leave of court to file and serve the amended claim, and that the original claim fails to meet the pleading requirements of Court of Claims Act § 11 (b) (defendant's Exhibit E, ¶¶13-17, 28).
Claimant now moves for partial summary judgment on the issue of the defendant's liability for the loss of his personal property. Defendant opposes the motion and cross-moves for dismissal, arguing that the amended claim, which was served without leave of Court, must be dismissed, and the original claim fails to meet all of the pleading requirements of Court of Claims Act § 11 (b). Inasmuch as the cross motion is jurisdictional in nature, it will be addressed first.
A pleading in the Court of Claims may be amended "in the manner provided by CPLR 3025, except that a party may amend a pleading once without leave of court within 40 days after its service, or at any time before the period for responding to it expires, or within 40 days after service of a pleading responding to it" (22 NYCRR § 206.7 [b]). Here, the amended claim was served on May 26, 2016 (defendant's Exhibit D), well beyond the time to do so as of right and without leave of the Court or stipulation of the parties. Where a pleading is served beyond the time to do so as of right and without leave of Court or a stipulation of the parties, several cases hold that the pleading is a nullity (Khedouri v Equinox, 73 AD3d 532 [1st Dept 2010]; Nikolic v Federation Empl. & Guidance Serv., Inc., 18 AD3d 522 [2d Dept 2005]; Dauernheim v Lendlease Cars, 202 AD2d 624 [2d Dept 1994]; Mekkelson v Cleverley Eng'g, 179 AD2d 1056 [4th Dept 1992]). While this language may lead the recipient of such a pleading to believe that no action is necessary, the weight of authority indicates the objection must be raised or it is waived. In Moran v Hurst (32 AD3d 909 [2d Dept 2006]), for example, the Court held that "by retaining the amended pleading without objection and even interposing an answer thereto, which did not assert an affirmative defense based on lack of jurisdiction, [the defendants] waived any right to dispute its propriety" (id. at 910; see also Golub v Ganz, 22 AD3d 919 [3d Dept 2005], n 2). Other cases hold simply that by retaining the amended pleading without objection, the recipient waives his or her right to dispute its propriety (Jordan v Aviles, 289 AD2d 532 [2d Dept 2001]; see also Sahinis v Brunswick Hosp. Ctr., 264 AD2d 474 [2d Dept 1999] [defendant waived objection to service of amended complaint without leave by failing to raise it as an affirmative defense and proceeding to litigate the matter on the merits]; Dime Sav. Bank of N.Y., FSB v Halo, 210 AD2d 572 [3d Dept 1994] [retention of amended pleading without objection to the timeliness of its service constitutes a waiver]; Tarallo v Gottesman, 204 AD2d 303 [2d Dept 1994] [defendants waived their objection to the service of an amended complaint by serving an answer and litigating the case for six months]; Chiulli v Coyne, 210 AD2d 450 [2d Dept 1994] [defendant waived its objection to service of amended complaint without leave by failing to reject it]; Nassau County v Incorporated Vil. of Roslyn, 182 AD2d 678 [2d Dept 1992], lv dismissed 80 NY2d 972  [defendant waived objection to service of amended complaints beyond the time to do so as of right by failing to reject them]; Lampman v Cairo Cent. School Dist., 47 AD2d 794 [3d Dept 1975][in accepting the amended complaint and interposing an answer and demand for a bill of particulars, defendant waived any objection it had to service of the complaint without leave of the court]; but see State Univ. Constr. Fund v Aetna Cas. & Sur. Co., 169 AD2d 52 [3d Dept 1991] [service of amended complaint beyond time to do so as of right and without court leave was a mere irregularity which may be disregarded if the amended pleading does not prejudice any substantial right of a party]). As the aforementioned cases demonstrate, the propriety of the claimant's amended claim depends upon whether the defendant asserted a timely objection or continued to litigate the case on the merits without objection. Although defendant did not reject the amended claim, it served an answer in which it raised as its twenty-eighth defense that "[t]he amended claim/complaint is a nullity since it was not authorized by statute, order or stipulation as required by Rule 3025 of the Civil Practice Law and Rules" (defendant's Exhibit E, ¶ 29). This was sufficient to alert the claimant to the fact that leave of court authorizing amendment of the claim was necessary. As a result, the amended claim must be dismissed.
Defendant next argues that the original claim fails to meet the pleading requirements of Court of Claims Act § 11 (b) because it "lacks a clear statement as to details of the alleged incident of assault, where the same occurred, who was involved, what transpired, what injuries, if any[,] were sustained[,] or any details whatsoever in order for defendant to fairly ascertain the alleged wrongs or the legal basis for the allegations of the claim" (Calabrese affirmation, ¶ 20).
Section 11(b) of the Court of Claims Act requires that a claim state "the time when and the place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed." Inasmuch as " 'all of the requirements in section 11(b) are substantive conditions upon the State's waiver of sovereign immunity' ", the failure to satisfy any one of the conditions is a jurisdictional defect requiring dismissal of the claim (Kolnacki v State of New York, 8 NY3d 277, 280  [citation omitted] rearg denied 8 NY3d 994 ; see also Kobrin v State of New York, 144 AD3d 1542 [4th Dept 2016]; Sommer v State of New York, 131 AD3d 757, 758 [3d Dept 2015]; Morra v State of New York, 107 AD3d 1115, 1116 [3d Dept 2013]; Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept 2010], lv dismissed 15 NY3d 911 ; Nasir v State of New York, 41 AD3d 677 [2d Dept 2007]; Mujica v State of New York, 24 AD3d 898 [3d Dept 2005], lv denied 7 NY3d 701 ). The guiding principle in determining the adequacy of a claim is whether it is sufficiently definite " 'to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances' . . ." (Lepkowski v State of New York, 1 NY3d 201, 207, quoting Heisler v State of New York, 78 AD2d 767, 767 ). "The statement must be specific enough so as not to mislead, deceive or prejudice the rights of [defendant]" (Demonstoy v State of New York, 130 AD3d 1337, 1337 [3d Dept 2015] [internal quotation marks and citation omitted]).
Here, the original claim clearly sets forth a cause of action for the loss of claimant's personal property and complies with the requirements of Court of Claims Act § 11 (b) to the extent it sets forth the time when and the place where such claim arose and the nature of same. With respect to the items of damage and the total sum claimed, attached to the claim were the administrative claim forms which itemized each item of property that was allegedly lost and the amount requested as reimbursement. Since "[a] copy of any writing which is attached to a pleading is a part thereof for all purposes", the Court finds that the claim sufficiently meets the pleading requirements of Court of Claims Act § 11 (b) with respect to the claimant's cause of action for the loss of his personal property.
With respect to any claim for assault or wrongful confinement, however, the original claim does not meet the pleading requirements of Court of Claims Act § 11 (b). While claimant alleges he was assaulted by correction officers, this information appears merely as a prelude to claimant's bailment claim, and was not the subject of the claim itself. If there was any doubt, however, claimant's statement on page two of the claim specifically identified the nature of the claim as one to recover damages for injury to or loss of personal property (see defendant's Exhibit B, p. 2). Moreover, nowhere in the claim does claimant allege the injuries he allegedly sustained are a result of the assaults. With respect to any cause of action for assault or battery therefore, the claim fails to meet the pleading requirements of Court of Claims Act § 11 (b).
Nor does the claim allege any of the required particulars with respect to a cause of action for wrongful confinement. Neither the factual basis for such a claim nor the date it allegedly accrued are set forth in the original claim (Steele v State of New York, 145 AD3d 1363, 1364 [3d Dept 2016] [a claim for wrongful confinement accrues upon claimant's release from the Special Housing Unit]). Thus, although the original claim meets the pleading requirements of Court of Claims Act § 11 (b) with respect to the bailment cause of action, it fails to meet these requirements with respect to any causes of action for either assault and battery or wrongful confinement.
Turning to claimant's motion for partial summary judgment on his claim relating to the defendant's loss of his personal property, the claimant failed to support his motion with proof of ownership and value in admissible form. None of the documents are certified business records (see CPLR 4518) and claimant failed to lay the appropriate foundation for consideration of the duplicate original materials he provided (Zuckerman v City of New York, 49 NY2d 557 ). Moreover, the information is insufficient to permit a valuation of all of the property for which claimant seeks reimbursement. Thus, claimant failed to meet his burden of establishing his entitlement to summary judgment as a matter of law (id.).
Based on the foregoing, claimant's motion is denied, and defendant's cross motion is granted to the extent of dismissing the amended claim and otherwise denied.
December 11, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims