New York State Court of Claims

New York State Court of Claims

HALL v. STATE OF NEW YORK, #2000-018-009, Claim No. 100475, Motion No. M-60233


Synopsis


Claimant brings a motion to dismiss defendant's answer and three affirmative defenses. The defenses cannot be stricken: failure to state a cause of action is harmless surplusage and comparative negligence is a valid defense which raises questions of fact. Motion to dismiss cannot be used to strike denials in answer.

Case Information

UID:
2000-018-009
Claimant(s):
LARRY HALL
Claimant short name:
HALL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100475
Motion number(s):
M-60233
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
LARRY HALL, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 1, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The Court has reviewed the following documents in determining claimant's motion to


strike defendant's answer:


Notice of Motion.............................................................................................1


Affidavit of Larry Hall, with exhibits A-D attached thereto...........................2


Affirmation in Opposition of Joel L. Marmelstein, Esquire

Assistant Attorney General..............................................................................3


Filed Documents:


Verified Claim.................................................................................................4


Verified Answer...............................................................................................5

Initially the Court notes that this motion was originally returnable on October 6, 1999; however, it was brought to the Court's attention that the Attorney General's office had not been served with a copy of the motion. As a result, the Court adjourned the motion until January 5, 2000, for service. Although the Court has not received an affidavit of service from claimant, defendant, in its opposing papers, acknowledges receipt of a copy of the motion on December 13, 1999.

Claimant brings this motion, pro se, seeking to strike defendant's answer to his claim, and specifically striking defendant's three affirmative defenses. The claim asserts damages as a result of the defendant's negligence in giving claimant the wrong medication and then failing to provide prompt medical attention and care. The answer primarily contains general denials to the substantive allegations followed by three affirmative defenses. The first affirmative defense asserts a lack of personal and subject matter jurisdiction for failure to timely serve or file a notice of intention or claim within 90 days after accrual of the cause of action. The second affirmative defense asserts a failure to state a cause of action and/or seeking relief beyond the jurisdiction of the Court. The third affirmative defense alleges contributory/comparative negligence and assumption of the risk.

Claimant alleges that the first affirmative defense should be stricken because he timely served a notice of intention on April 28, 1999, and served a claim on May 18, 1999. The claim was filed on June 1, 1999 with the Clerk of the Court. Despite never receiving a copy of the notice of intention, defendant does acknowledge that in fact the claim was timely, and as a result withdraws its first affirmative defense. Accordingly, defendant's first affirmative defense is stricken.

Claimant argues that the second affirmative defense should be stricken because he has stated a cause of action for malpractice for which genuine issues of material fact exist. Defendant asserts that this defense is proper and to the extent that claimant may be seeking relief for a violation of his Eighth Amendment rights under the Federal Constitution, this Court lacks jurisdiction. A pleaded defense of failure to state a cause of action is harmless surplusage and a motion to strike is unnecessary and should be denied. (Pump v Anchor Motor Freight, Inc., 138 AD2d 849.)

Claimant next argues that defendant's third affirmative defense alleging contributory negligence or assumption of risk should be stricken because defendant is "absolute [sic] liable for the injury cause[sic]" to him, and he did not contribute to his injuries or assume the risk. Defendant has asserted a valid defense. Where a defense is sufficient on its face and raises issues of fact, a motion to strike should be denied. (149 Clinton Ave. No., Inc. v Grassi, 51 AD2d 502; Levine v Levy, 285 App Div 848.)

Finally, claimant, in passing, asserts that the entire answer served by the defendant is objectionable and apparently should be stricken. The Court notes that a motion to dismiss a defense is available only against an affirmative defense and cannot be used to strike out mere denials contained in the answer. (See, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3211:38, at 53.) Furthermore, claimant has not shown, by any documentary proof, that defendant's denials are without merit. (See, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3018:2, at 146 and CPLR C3211:38, at 53.)

Accordingly, based upon the foregoing, by stipulation claimant's motion is GRANTED only to the extent that defendant's "First Affirmative Defense" is stricken, and the balance of claimant's motion is DENIED.



May 1, 2000
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims