New York State Court of Claims

New York State Court of Claims

SINCLAIR v. THE STATE OF NEW YORK, #2000-017-023, Claim No. 101416, Motion No. M-61062


Synopsis


The Court denied the pro se claimant's motion, in part, to strike defendant's affirmative defenses, and granted the motion insofar as defendant alleged that the Claim failed to state a cause of action and that the Claim in this medical malpractice action was defective in that it did not include a certificate of merit.

Case Information

UID:
2000-017-023
Claimant(s):
KENNY SINCLAIR
Claimant short name:
SINCLAIR
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101416
Motion number(s):
M-61062
Cross-motion number(s):

Judge:
ANDREW P. O'ROURKE
Claimant's attorney:
Kenny Sinclair, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: Mary B. Kavaney, Esq.Assistant 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 1 through 6, 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 filed 1-31-00..............................................2


Affidavit in Reply, Filed 2-3-00...........................................................3


Affidavit in Reply, Filed 5-11-00.........................................................4


Affirmation in Opposition filed 4-28-00..............................................5


Filed Claim and Exhibits; Verified Answer.........................................6

Claimant filed the instant claim alleging that he was denied adequate and proper medical care and treatment for a cyst while incarcerated at Fishkill Correctional Facility. Defendant filed a Verified Answer alleging various 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 a prior pleading * * *." In deciding a motion to dismiss a defense, all reasonable inferences are drawn in favor of the defense (see, Siegel, NY Prac., §269, at 397 [2d Ed]).

The first affirmative defense alleges that the injuries allegedly sustained by claimant were caused in whole or part by claimant's own culpable conduct or by the conduct of others for whom the State has no legal responsibility. Claimant contends that this defense should be dismissed on the ground that his injuries were caused by nature and by the failure of the medical staff to properly treat him and not by any conduct he may have engaged in (see, 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.

With respect to the second affirmative defense, which concerns the defense of immunity for discretionary determinations made by defendant's agents, the fifth affirmative defense, which concerns claimant's failure to mitigate damages, the sixth affirmative defense, which concerns payments by collateral sources, the seventh affirmative defense, which concerns actions mandated by Statute, the Court finds that the defenses are properly stated (see, CPLR 3018[b], supra). In the absence of relevant discovery dismissal of these defenses is unwarranted, and the motion is DENIED with respect thereto.

The third 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 has provided documentation indicating that he served a Notice of Intention on the Attorney General in the prescribed manner on February 24, 1999. However, claimant's Claim references medical treatment that occurred as early as June of 1998. 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. Thus, this motion is DENIED insofar as it seeks dismissal of the third affirmative defense.

The fourth affirmative defense alleges that the Claim fails to state a cause of action and the eighth affirmative defense alleges that claimant failed to comply with CPLR 3012-a, which requires a certificate of merit in a medical malpractice action . In response to claimant's motion to strike the fourth affirmative defense, defendant alleges that there are no medical records provided to indicate that the medical procedures employed to treat claimant's painful condition were improper and thus that the defense is properly pleaded at this time. However, accepting claimant's factual averments in the claim as true, the Court finds that claimant has sufficiently stated a cause of action for medical malpractice in alleging that there was an improper delay in treatment of his painful medical condition by medical providers employed by the State. Thus, the Court GRANTS claimant's motion to strike the fourth affirmative defense. Similarly, the Court GRANTS claimant's motion to strike the eighth affirmative defense since the statutory requirement that a certificate of merit be appended to the claim in a medical malpractice action is expressly inapplicable where the claimant is proceeding pro se, as here (see, CPLR 3012-a[f]).

Accordingly, claimant's motion is GRANTED insofar as it seeks dismissal of the fourth and eighth affirmative defenses and is otherwise DENIED.


July 24, 2000
White Plains, New York

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