New York State Court of Claims

New York State Court of Claims

CASTILLO v. THE STATE OF NEW YORK, #2000-017-021, Claim No. 102037, Motion No. M-61480


Synopsis


Claimant's motion to strike defendant's affirmative defenses was denied.

Case Information

UID:
2000-017-021
Claimant(s):
MIGUEL CASTILLO
Claimant short name:
CASTILLO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102037
Motion number(s):
M-61480
Cross-motion number(s):

Judge:
ANDREW P. O'ROURKE
Claimant's attorney:
Miguel Castillo, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: Mary B. KavaneyAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 24,2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered one through 4, were read and considered by the Court on claimant's motion to strike defendant's affirmative defenses:

Notice of Motion and Affidavit...........................................................1

Affirmation in Opposition ..................................................................2

Affidavit in Reply................................................................................3

Filed Claim and Exhibits; Verified Answer........................................4

Claimant filed the instant claim on March 1, 2000 alleging that he was denied adequate and proper medical care and treatment for a nasal condition while incarcerated at Fishkill Correctional Facility. Defendant filed a Verified Answer alleging three affirmative defenses. Claimant now moves to dismiss those affirmative defenses pursuant to CPLR 3211(b) on the ground that they lack merit. Pursuant to CPLR 3018(b), defendant is required to plead all affirmative defenses "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 the prior pleading * * *." In deciding a motion to dismiss a defense, all reasonable inferences are drawn in favor of the defense (see, Siegel, New York Practice, 2d Ed., §269, p. 397).

The first affirmative defense alleges that claimant assumed the risk of his injuries by his own conduct. Claimant contends that this defense should be dismissed on the ground that he "engaged in no conduct on his own which had any inherent risk other than entrusting his health care or needs to the providers thereof at Fishkill Correctional Facility" (Claimant's Affidavit, ¶3). However, as defendant argues, since there has been no discovery to date to verify claimant's medical condition or whether, in fact, he contributed to his condition by any conduct, dismissal of this affirmative defense on the merits would be premature. Thus, the motion is DENIED as to the first affirmative defense.

The second affirmative defense alleges that the Court lacks jurisdiction over the claim due to claimant's failure to timely serve a notice of intention or claim on the Attorney General in accordance with Court of Claims Act §§10 and 11. Claimant alleges that he served a Notice of Intention on the Attorney General in the prescribed manner on January 10, 2000. However, claimant's filed Claim references medical treatment that occurred as early as March 2, 1998 and which continued through approximately May of 1999, and refers to his receipt of an administrative response to a related grievance that he received in January 2000. Accordingly, it is not clear on the present submissions when the claim accrued and whether the Notice of Intention was timely served or whether the Claim was timely served and filed, and the motion is DENIED insofar as it seeks dismissal of the second affirmative defense.

With respect to the third affirmative defense, which concerns the defense of immunity for discretionary determinations made by defendant's agents, the Court finds that the defense is properly stated (see, CPLR 3018[b], supra) and in the absence of relevant discovery dismissal of the defense is unwarranted.

Accordingly, claimant's motion is DENIED in all respects.


July 24,2000
White Plains, New York

HON. ANDREW P. O'ROURKE
Judge of the Court of Claims