New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2002-019-578, Claim No. 106213, Motion Nos. M-65550, M-65680


Claimant's motion to strike affirmative defenses is denied; Court directs parties to submit proof of Claimant's compliance with CCA 10 and 11 pursuant to separate Order to Show Cause; State's motion for leave to amend its Verified Answer is granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-65550, M-65680
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
October 11, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for an order striking the State's entire Verified Answer including various affirmative defenses (Motion No. M-65550). The defendant State of New York (hereinafter "State") opposes said motion. The State has also moved for leave to amend its Second Affirmative Defense contained in its Verified Answer (Motion No. M-65680).

The Court has considered the following papers in connection with these motions:
  1. Claim, filed June 13, 2002.
  2. Verified Answer, filed June 24, 2002.
  3. Notice of Motion No. M-65550, sworn to July 15, 2002, and filed July 19, 2002.
  4. Affidavit of David Jones, in support of Motion No. M-65550, sworn to July 15, 2002, with attached exhibits.
  5. Affirmation of Joseph F. Romani, AAG, in opposition to Motion No. M-65550, dated August 19, 2002, and filed August 21, 2002, with attached exhibits.
  6. Notice of Motion No. M-65680, dated August 19, 2002, and filed August 21, 2002.
  7. Affirmation of Joseph F. Romani, AAG, in support of Motion No. M-65680, dated August 19, 2002, with attached exhibits.
  1. The underlying Claim makes various allegations which are couched in terms of medical malpractice and medical negligence occurring during Claimant's incarceration at Southport Correctional Facility (hereinafter "Facility"). The Claim appears to cover a time span commencing in April 2001 and running through July and October of 2001. More specifically, the alleged misconduct by Nurse Dyal at the Facility is alleged to include failing to administer medication; using profane language; terminating or failing to conduct sick call; and some alleged misconduct relating to Claimant's TB test. Nurse Dyal's alleged acts and/or omissions are alleged to have occurred on April 30, 2001 and July 26, 27 & 30, 2001. The allegations of misconduct against Dr. Alves for denying a general surgery consult occurred on October 10, 2001.
  2. This Claim was served on the Attorney General's office by certified mail, return receipt requested, on June 13, 2002 and filed with the Clerk of the Court on that same date. The State filed a Verified Answer on June 24, 2002 containing numerous affirmative defenses. The State's Verified Answer actually denies it received service of any notice of intention (Verified Answer, ¶ 8), but said denial warrants further discussion in view of Claimant's proof. (See discussion infra, p 3). Before proceeding further, the Court notes that it encountered difficulty in deciphering Claimant's pleadings and motion papers all of which are handwritten.
  3. Claimant's Motion No. M-65550
  4. Claimant seeks to strike the State's First and Second Affirmative Defenses both of which contain jurisdictional defenses. Generally, "[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." (CPLR 3024 [b]).
  5. 1) First Affirmative Defense
  6. The State's First Affirmative Defense asserts that this Court lacks jurisdiction because neither the claim or a notice of intention were served within ninety days of accrual as required by CCA 10 and 11. There is no doubt that this Claim was served beyond the 90 days after the latest possible date of accrual and, as such, is untimely if viewed in isolation.[2] However, a claimant has two years to file and serve a claim if a notice of intention was served within ninety days of accrual (CCA 10 [3]). Here, Claimant alleges that he did serve a Notice of Intention on the Attorney General's office on October 19, 2001. (Claimant's "Supporting Affidavit" sworn to July 15, 2002, ¶ 2). In support of this assertion, Claimant has submitted a copy of a certified mail return receipt card addressed to the Attorney General's office and stamped with a receipt date of October 19, 2001. (Claimant's Exhibit A). Unfortunately, however, Claimant did not attach a copy of the Notice of Intention itself to his papers. For some reason, the State has failed to acknowledge Claimant's assertion or his Exhibit A. Rather, the State's arguments focus on the service and filing dates of the Claim as if no Notice of Intention was served as recited in its Verified Answer. Nevertheless, the Court cannot ignore Claimant's Exhibit A. That having been said, however, because the Notice of Intention has not been included with the motion papers, this Court cannot be certain that the document served on October 19, 2001 was a Notice of Intention that relates to each of the allegations of this Claim. Claimant has submitted an Affidavit of Service but it was prepared in July of 2002 for purposes of this motion and not contemporaneously with the alleged service. (Claimant's Exhibit A). Consequently, in this Court's view, although Claimant has come forward to show that someone served the Attorney General's office with something on October 19, 2001, this Court cannot ascertain with any certainty whether it was Claimant's Notice of Intention and, if so, whether it particularizes the same allegations contained in this Claim. As such, without more information, Claimant's motion to strike the State's First Affirmative Defense must be denied without prejudice.
  7. Further, in view of the foregoing, namely that the Court cannot determine from this record whether a Notice of Intention was timely and properly served on the Attorney General's office, the Court has this same date issued an Order to Show Cause directing the parties to submit written statements and any relevant proof to establish whether a Notice of Intention was timely and properly served on the Attorney General's office, in accordance with the requirements of Court of Claims Act 10 and 11.
  8. 2) Second Affirmative Defense
  9. The State's Second Affirmative Defense outlines the accrual dates alleged in this Claim and Claimant's failure to comply with the time requirements of CCA 10 and 11 in relation to the Claim. Parenthetically, the Court notes that the State, as well as Claimant, spent a fair amount of time discussing the relevant time periods in terms of a one hundred twenty-day period after exhaustion of administrative remedies. However, there is no requirement for the exhaustion of administrative remedies in relation to any claim other than inmate bailment claims which is not involved here. (CCA 10 [9]; Fullwood v State of New York et al., Ct Cl, Corbett, Jr. J., November 14, 2001, Claim No. 103204, Motion No. M-63915 [UID No. 2001-005-541])[3]. In any event, for the same reasons noted above, Claimant's motion to strike the State's Second Affirmative Defense will be denied without prejudice.
  10. With respect to Claimant's motion to strike the State's remaining affirmative defenses, each of the remaining defenses are standard clauses and are not prejudicial or scandalous in any respect whatsoever. The State properly included the Third through Ninth affirmative defenses in its Verified Answer. Claimant's motion is denied with respect to these remaining affirmative defenses.
  11. Motion No. M-65680
  12. The State seeks to correct a mistake contained in its Second Affirmative Defense. The State incorrectly stated the Claim was served on May 28, 2002 when in fact it was received by the Attorney General's Office on June 13, 2002. Claimant does not oppose the correction. As such, the State's motion for permission to amend its Second Affirmative Defense by changing May 28, 2002 to June 13, 2002 is GRANTED. This matter will proceed on the original version of the State's Verified Answer, with paragraph 8 deemed amended in accordance with this Decision & Order. There is no need for the State to serve and file an Amended Answer to reflect this change. The Court will deem its copy so amended.
  13. Accordingly, for the reasons stated above, it is ORDERED that Claimant's motion, Motion No. M-65550, is DENIED and the State's motion, Motion No. M-65680, is GRANTED.

October 11, 2002
Binghamton, New York

Judge of the Court of Claims

This document is entitled a "Notice of Motion", but in reading the same the Court notes that it appears to be an affidavit of David Jones, in opposition to Motion No. M-65680, and in support of Motion No. M-65550, and the Court will treat it as such.
Based on the allegations, the earliest possible accrual date is April 30, 2001 and the latest possible accrual date is October 10, 2001. Consequently, the ninety days in which to file and serve a claim would have expired, at the earliest, on July 30, 2001 and, at the latest, on January 8, 2002. (General Construction Law, § 25-a [1]). This Claim was served and filed with the Clerk of the Court on June 13, 2002 which date is well beyond ninety days from even the latest possible accrual date and would be untimely were it not for the service of a Notice of Intention on October 19, 2001.
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