New York State Court of Claims

New York State Court of Claims

McKENZIE v. THE STATE OF NEW YORK, #2002-032-030, Claim No. 106494, Motion No. M-66090


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

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):
Cross-motion number(s):

Claimant's attorney:
Leonard McKenzie, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael C. Rizzo, Esq., Assistant Attorney GeneralOf Counsel
Third-party defendant's attorney:

Signature date:
February 21, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


In this action, claimant, an inmate in the State prison system, alleges that he has suffered from an acid reflux condition since June 2000 and that no adequate medical treatment has been provided to him. In its answer, the State raised the following affirmative defenses: 1) claimant's culpable conduct, 2) assumption of risk, 3) sovereign immunity, and 4) untimeliness. Claimant has now moved to strike these defenses.

Affirmative defenses must be set forth when there are matters 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" (CPLR 3018). Answers will often include "boilerplate" allegations that are not truly affirmative defenses. Pleading a matter that is not truly an affirmative defense, however, does not shift the burden of proof to the defendant (Beece v Guardian Life Ins. Co. of Am., 110 AD2d 865 [2d Dept 1985]). Instead, that portion of the answer is merely "harmless surplusage" and has no legal effect (Dubois v Vanderwalker, 245 AD2d 758, 760 [3d Dept 1997]). Parties that are notified of an opponent's affirmative defense may simply accept that knowledge and plan their case accordingly; move for a more particular statement if the allegations are confused or unclear (CPLR 3024 [a]); serve a demand for a bill of particulars with respect to the defense (CPLR 3041); or move to dismiss or strike a defense on the ground that "it is not stated or has no merit" (CPLR 3211 [b]). In deciding such a motion, the court must draw all reasonable inferences in support of the defense and assume the truth of defendant's allegations, and the motion should not be granted if there is any doubt as to the availability or applicability of a defense (see, generally, Duboff v Board of Higher Education of the City of New York, 34 AD2d 824 [2d Dept 1970] ; Arquette v State of New York, 190 Misc2d 676 [Ct Cl 2001]).

Claimant's challenge to the State's first and second affirmative defenses are based on documents detailing steps that he took in the past to obtain proper medical treatment. This type of evidence merely raise issues of material fact which are more properly determined at trial (see, Harrison v State of New York, 262 AD2d 833 [3d Dept 1999]).

With respect to the third defense of sovereign immunity, claimant's argument that his condition has "gotten worst" [sic] and that it would not have done so had prison medical staff acknowledged his earlier complaints (McKenzie affidavit, ¶6) appears to bear no relation to this defense and thus does not provide authority for it to be stricken.

As to the fourth affirmative defense, untimeliness, counsel for defendant has agreed to withdraw that defense "to the extent the claim is limited to all acts which accrued on or after July 1, 2002" (Rizzo affidavit, ¶4). This is the date recited in the claim as the date on which the claim accrued (claim, ¶4). The factual allegations in the claim, however, make it clear that claimant is seeking to recover damages for a period of alleged misdiagnosis and/or medical neglect that occurred throughout the period from June 2000 until July 1, 2002. In fact, the latter date is only four days before a notice of intention was served on the Attorney General (claim, ¶5) and only about a month before the claim was filed. The Court can certainly understand counsel's willingness to take a step that would, in effect, limit the claim to a period of several days but declines to allow the "withdrawal" of the defense in this case. On the other hand, claimant does not succeed in convincing the Court that the defense should be stricken. His only argument, in fact, addresses an issue that is not raised in the answer: the manner in which the claim and/or the notice of intention were served. Inasmuch as the timeliness of the claim is not directly or persuasively addressed by either party, this affirmative defense will not be stricken.

Claimant's motion is denied.

February 21, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for an order striking defendant's affirmative defenses:
1. Notice of Motion and Supporting Affidavit of Leonard McKenzie, pro se, with annexed Exhibits

2. Affidavit in Opposition of Michael C. Rizzo, Esq., AAG

Filed papers: Claim; Answer