FILED: NYS COURT OF CLAIMS 07/13/ :49 AM CLAIM NO NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/13/2016

Transcription

1 FILED: NYS COURT OF CLAIMS 07/13/ :49 AM CLAIM NO NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/13/2016 STATEOFNEWYORK: COURTOFCLAIMS MATTHEW NAPOLEON!, - against - THE STATE OF NEW YORK, Claimant, Defendant. VERIFIED ANSWER CLAIM NO.: OAG NO.: The defendant, The State of New York, by and through its attorney, Honorable Eric T. Schneiderman, Attorney General of the State of New York, as and for an answer to the claim herein, alleges, upon information and belief: FIRST: Admits the allegations contained in paragraphs numbered "10'', "12'', "50" and "55" of the claim. SECOND: Denies the allegations contained in paragraphs numbered "l ", "3", "20", "31'', "32", "41", "43", "46", "48", "51", "52", "53", "56'', "57'' and "58" of the claim. THIRD: Denies knowledge and information sufficient to form a belief as to the truth of theallegationscontainedinparagraphsnumbered "2", "4", "5'', "6'', "7", "8", "9", "11'', "13", "14", "15", "16", "17'', "18", "19'', "21'', "22", "23", "24'', "25'', "26", "27", "28", "29", "30", "33", "34", "35", "36", "37", "38", "40", "42", "45" and "47" of the claim. 1 1 of 7

2 FOURTH: Repeats and reiterates each and every admission and denial of the allegations set forth in paragraphs "1" through "58" of the Claim with the same force and effect as ifherein set forth at length in answer to the allegations set forth in paragraphs designated "39", "44", "49", and "54" of the Claim. AS AND FOR A FIRST DEFENSE FIFTH: The notice of intention is insufficient to extend the time for filing and serving the claim in that it fails to comply with Section 11 of the Court of Claims Act by failing to include any particularization of the nature of the cause of action and the defendant's conduct in regard to it and, therefore, there is no proper claim over which the Court has jurisdiction. AS AND FOR A SECOND DEFENSE SIXTH: This Court lacks subject matter jurisdiction over the claim as it was not filed with the Clerk of the Court of Claims within ninety (90) days of accrual or, where a Notice of Intention to File a Claim has been timely and properly served, within two (2) years of accrual, as required by Sections 10(3) and 1 l(a) of the Court of Claims Act. AS AND FOR A THIRD DEFENSE SEVENTH: This Court lacks subject matter jurisdiction over the claim as it was not filed with the Clerk of the Court of Claims within ninety (90) days of accrual or, where a Notice of Intention to File a Claim has been timely and properly served, within one (1) y~ar of accrual, as required by Sections 10(3-b) and 1 l(a) of the Court of Claims Act. 2 2 of 7

3 AS AND FOR A FOURTH DEFENSE EIGHTH: This Court lacks subject matter jurisdiction over the claim and personal jurisdiction over the defendant, the State of New York, as the claim is untimely in that neither the claim nor a notice of intention was served within ninety (90) days of the accrual of the claim as required by Court of Claims Act Section 11 and Court of Claims Act Section 10(3). AS AND FOR A FIFTH DEFENSE NINTH: This Court lacks subject matter jurisdiction over the claim and personal jurisdiction over the defendant, the State of New York, as the claim is untimely in that neither the claim nor a notice of intention was served within ninety (90) days of the accrual of the claim as required by Court of Claims Act Section 11 Court of Claims Act Section 10(3-b ). AS AND FOR A SIXTH DEFENSE TENTH: This Court lacks subject matter jurisdiction over the claim and personal jurisdiction over the defendant, the State of New York, as the claim fails to comply with Section 11 of the Court of Claims Act and Section 206.6(b) of the Uniform Rules for the Court of Claims by failing to include the items of damage or injury claimed. AS AND FOR A SEVENTH DEFENSE ELEVENTH: This Court lacks subject matter jurisdiction over the claim and personal jurisdiction over the defendant, the State of New York, as the claim fails to comply with Section 11 of the Court of Claims Act by failing to include the total sum claimed. 3 3 of 7

4 AS AND FOR A EIGHTH DEFENSE TWELFTH: This Court lacks subject matter jurisdiction over the claim and personal jurisdiction over the defendant, the State of New York, as the claim fails to comply with Section 11 of the Court of Claims Act by failing to include adequate particularization of the nature of the cause of action and the defendant's conduct in regard to it. AS AND FOR A NINTH DEFENSE THIRTEENTH: To the extent the claim alleges civil rights violations the Court lacks subject matter jurisdiction over the claim and fails to state a cause of action against the State of New York. AS AND FOR A TENTH DEFENSE FOURTEENTH: That defendant, the State of New York, is entitled to immunity on the basis that the State's acts or omissions complained of in the claim were undertaken as part of its governmental function, defendant owed the Claimant no special duty and/or defendant's alleged acts or omissions were the result of an exercise of discretion. AS AND FOR A ELEVENTH DEFENSE FIFTEENTH: The answering defendant took actions which were privileged as being discretionary determinations made by him/her while acting within the scope of his/her duties as a public official, and therefore the answering defendant is immune from any liability from such actions. 4 4 of 7

5 AS AND FOR A TWELFTH DEFENSE SIXTEENTH: If the injuries and damages were sustained by the claimant as alleged-in the Claim, such damages and injuries are attributable, in whole or in part, to the comparative negligence or culpable conduct of the claimant, and if any damages are recoverable against the answering defendant(s), the amount of such damages shall be diminished in proportion with the comparative negligence and/or culpable conduct of claimant which caused said damages. AS AND FOR A THIRTEENTH DEFENSE SEVENTEENTH: The claim fails to state a cause of action against the defendant, The State of New York, upon which relief may be granted. AS AND FOR A FOURTEENTH DEFENSE EIGHTEENTH: This claim is barred by the applicable statute of limitations. 5 5 of 7

6 WHEREFORE, the defendant, The State of New York, respectfully requests that the claim be dismissed in all respects. AND, in the event an award is made to the claimant, damages should be reduced in the proportion which the culpable conduct of the claimant bears to the culpable conduct which caused said damages. DATED: Albany, New York July 11, 2016 Eric T. Schneiderman Attorney General of the State ofnew York, Attorney for Defendant New York State Office of the Attorney General The Capitol Albany, New York T~lephone: (518) 4~~4 BY:. ~#~ THOMAS R. MONJEA Assistant Attorney Ge TO: Sussman & Watkins Michael H. Sussman, Esq. P.O. Box Railroad Avenue, Suite 3 Goshen, New York of 7

7 VERIFICATION THOMAS R. MONJEAU, being a duly licensed attorney in the State of New York and an Assistant Attorney General in the Office of Eric T. Schneiderman, Attorney General of the State of New York, does hereby affirm under penalties of perjury pursuant to CPLR I have been assigned to defend the within proceeding and I am acquainted therewith. I have read the foregoing Answer. The same is true to my knowledge, except as to those matters alleged on information and belief, and as to those matters, I believe them to be true. This verification is made by me pursuant to CPLR 3020(d)(2). Dated: Albany, New York July 11, 2016 ~~rn to before me this \ 'Z>')f"' day of July, THOMASR.MO SERENA M. CAMPON NOTARY PUBLIC-STATE OF NEW YORK No. 01CA Quallfled In Sch n ctody County My Qomm1aa1en hplr a Nevemt>er 29, 20JS; 7 7 of 7