Paul Gaity, Claimant, v. The State of New York, Defendant. (2024)

This negligence action was filed pursuant to a prior order of this Court granting, in part, claimant Paul Gaity's motion for permission to file a late claim (see Gaity v State of New York, UID No. 2023-062-011 [Ct Cl, April 12, 2023] [Chaudhry, J.]). Although the proposed claim submitted in support of that motion asserted numerous theories of liability, the Court permitted claimant to file a claim alleging only a cause of action that defendant's negligence in failing to follow facility directives governing the movement of incarcerated individuals in keeplock status caused claimant to be assaulted by such an individual. The Court held that claimant failed to provide any particularized factual allegations to support his other distinct theories and causes of action. Claimant thereafter filed the claim and defendant answered. Claimant now moves pursuant to CPLR 3211 (b) to dismiss defendant's eighth affirmative defense, which asserts that the Court "lacks subject matter jurisdiction over [the] [c]laim" because claimant "did not comply with the Court's [prior order], directing [c]laimant to file a [c]laim limited to the cause of action premised on the allegations of negligent supervision specifically with respect to the asserted violation of the movement directive for keeplocked individuals" (Answer, ¶ 12 [internal quotation marks omitted]). Defendant opposes the motion. For the reasons stated below, the motion is denied.

Claimant asserts two grounds for dismissing the eighth affirmative defense. First, claimant argues that the claim filed in this action is in full compliance with the Court's prior order and that defendant does not specify in what manner the claim fails to comply. Second, claimant argues that, even if the claim included causes of action beyond that permitted by the Court's order, such noncompliance does not deprive the Court of jurisdiction over the entirety of the claim. Defendant counters that claimant has failed to establish the defense is without merit as a matter of law and provides a list of the allegations in the claim which, in defendant's view, go beyond the limited theory of liability permitted by the prior order.

Under CPLR 3211 (b), "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." The moving party "bears the burden of demonstrating that the affirmative defense is 'without merit as a matter of law' " (Bank of NY v Penalver, 125 AD3d 796, 797 [2d Dept 2015], quoting Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept 2006]). In reviewing a motion made pursuant to CPLR 3211 (b), a Court must "liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference" (Penalver, 125 AD3d at 797 [internal quotation marks omitted]). The motion may be granted only if the moving party "can demonstrate that the defenses are without merit as a matter of law because they either do not apply under the factual circumstances of [the] case, or fail to state a defense" (Bank of Am., N.A. v 414 Midland Ave. Assoc., LLC, 78 AD3d 746, 748 [2d Dept 2010] [internal quotation marks omitted and alteration in original]). But if there is "any doubt" with respect to the availability of the challenged defense, the defense should not be dismissed and the motion denied (Family-Friendly Media, Inc. v Recorder Tel. Network, 74 AD3d 738, 739 [2d Dept 2010] [internal quotation marks omitted]; see also Stopani v Allegany Co-op Ins. Co., 83 AD3d 1446, 1447 [4th Dept 2011]).

Here, claimant has not demonstrated that the eighth affirmative defense lacks merit as a matter of law. Initially, contrary to claimant's assertion (Pollack Affirm, ¶ 16), the claim does not fully comply with the Court's prior order granting late claim relief. To be sure, the claim properly alleges that defendant was negligent because it "fail[ed] to escort a 'keeplock' [individual] as required" (Claim, ¶ 4 [b] [ii]). However, the claim goes beyond that theory and retains several of the sweeping allegations of negligence from the proposed claim, including, for example, that defendant failed to "properly handle, supervise and discipline" the assailant (id. ¶ 4 [a]); "fail[ed] to prevent the attack" (id. ¶ 4 [b] [iii]), and "fail[ed] to take any precautions to prevent injury to . . . [c]laimant" (id. ¶ 4 [b] [iv]). Although some of these allegations may fairly be read to apply to the alleged movement directive violation, they are also not clearly limited to that theory, as defendant correctly asserts. Indeed, some allegations—for example, that defendant failed properly to "discipline" the assailant—are not obviously tethered to the alleged violation of the movement directive at all. The ambiguity regarding the scope of these broad allegations is further compounded by the fact that, like the proposed claim submitted in support of the late claim motion, the filed claim does not contain any clearly labeled or numbered causes of action (cf. CPLR 3014). Moreover, contrary to claimant's further suggestion (see Pollack Affirm, ¶ 16), the Court's prior order was not limited to excluding the specific factual allegations discussed on pages seven and eight of that order; rather, the prior order unambiguously directed the filing and service of a claim which excised any references to any theories of liability other than the one very narrow, specific theory that the Court concluded had a "minimally sufficient" appearance of merit (see Gaity v State of New York, UID No. 2023-062-011 [Ct Cl, April 12, 2023] [Chaudhry, J.]).

Lastly, although the Court agrees with claimant that the inclusion of extraneous allegations would not warrant dismissal of the entire claim for lack of subject matter jurisdiction,¹ the defense is not wholly without merit. Viewing the eighth affirmative defense in the light most favorable to defendant, the defense is not meritless to the extent it can be construed as asserting that the Court lacks jurisdiction over any portions of the claim which go beyond defendant's alleged failure to comply with the movement directive. If the Court were to find, upon a proper motion by defendant, that portions of the claim go beyond what was authorized by the order granting late claim relief, so much of the defense would result in the dismissal of those portions of the claim for lack of subject matter jurisdiction (see Adams v State of New York, UID No. 2014-010-080 [Ct Cl, Dec. 5, 2014] [Ruderman, J.]; see generally Campbell v State of New York, UID No. 2004-030-001 [Ct Cl, Jan. 7, 2004] [Scuccimarra, J.]; cf. Czynski v State of New York, 53 AD3d 881, 882 [3d Dept 2008], lv denied 11 NY3d 715 [2009] [affirming dismissal of a claim's cause of action that was not adequately asserted in the notice of intention to file a claim]; Bowles v State of New York, 208 AD2d 440, 443 [1st Dept 1994] [same]). Indeed, claimant concedes that defendant may move to strike any causes of action that violate the Court's prior order (see Pollack Affirm, ¶ 19). Thus, because claimant has not eliminated all doubt as to the availability of the defense, it shall not be dismissed (see Family-Friendly Media, Inc., 74 AD3d at 739; Bank of NY v Penalver, 125 AD3d at 797).

Accordingly, it is hereby

ORDERED that claimant's motion (M-99858) is DENIED.

May 21, 2024

Albany, New York

ZAINAB A. CHAUDHRY

Judge of the Court of Claims

Papers Considered:

1. Gaity v State of New York, UID No. 2023-062-011 (Ct Cl, April 12, 2023) (Chaudhry, J.);

Claim, filed July 6, 2023;

2. Answer, filed August 15, 2023;

3.Notice of Motion and Affirmation of Jeffrey R. Pollack, Esq., in Support of Motion, with Exhibits 1-3;

4. Affirmation and Memorandum of Law of Assistant Attorney General Joseph E. Scolavino in Opposition to Motion;

5. Reply Affirmation of Jeffrey R. Pollack, Esq.

FOOTNOTES

1.   Defendant's conclusory argument in this regard is wholly unsupported.

Zainab A. Chaudhry, J.