On December 17, 2003, the following papers were read on motion by Claimant for
an order striking Defendant's first six affirmative defenses and on cross-motion
by Defendant for an order dismissing the claim:
Notice of Motion (M-67585) and Affidavit Annexed
Notice of Cross-Motion (CM-67642); Affidavit and Exhibits Annexed
Claimant's Reply Affidavit
Filed Papers: Claim; Answer
There are several motions before the Court. The first is Claimant's Motion No.
M-67585 seeking to strike the first six affirmative defenses raised by the
Defendant in its answer. Thereafter, the State cross-moved (Cross-Motion
CM-67642) to dismiss the claim pursuant to CPLR 3211 (a)(2) and (7). Claimant's
third motion (M-67683), to file a "supplemental claim" is decided in a separate
decision and order.
The claim herein was filed on June 23, 2003, and the underlying causes of
actions are for New York State constitutional torts; negligence (ministerial
neglect) for knowingly, wrongfully and maliciously violating Claimant's civil
rights in violation of the 5th and 14th amendments, as well as the 8th Amendment
(to the United States Constitution). The claim sounding in ministerial neglect
is for the alleged failure of a nurse administrator at Wende Correctional
Facility (Wende) to provide adequate medical care from August 2002 to February
2003, and again from February to April 2003. The claim proceeds to describe a
chronology of events supposedly occurring in August
I will first address the cross-motion to dismiss the claim. Defendant appends
as Exhibit A to its moving papers a copy of Claimant's notice of intention to
file a claim, received on April 21, 2003, which describes a slip and fall by
Claimant on or about August 2002, and a chronology of medical treatments,
including the casting of Claimant's hand/arm from August 2002 to February, 2003,
some complaints on or about January 2003, as well as February and March 2003,
and further noting that he has been "medically keep-locked" from August 2002
through April 8, 2003, ostensibly with no reason given for such continued
The gist of this claim is that Claimant alleges that his hand remained in a
plaster cast with four pins in his right hand for a period of seven months
"unattended" and for inappropriate medical care for not providing proper medical
care thereafter in the form of rehabilitative physical and occupational therapy,
and that such caused irreparable and irreversible injury. Lest there be any
question, no cause of action is asserted relating to the underlying accident,
but rather to the medical care, or lack thereof, provided after the accident.
The first ground for dismissal of the claim relates to any and all events or
causes of action accruing more than 90 days prior to service of the notice of
intention on April 21, 2003, more or less to any events preceding January 21,
2003. The second ground for dismissal of certain causes of actions are the
vagaries of the allegations of the claim and the notice of intention between
Defendant's employees and outside medical professionals. The Defendant also
seeks dismissal of those allegations of constitutional violations which, while
raised in the claim, are not even mentioned in the notice of intention, and thus
were not timely preserved.
Defendant observes that the first and second causes of action raise allegations
of violation of the 8th Amendment against cruel and unusual punishment, the
third cause of action alleges a deprivation of Claimant's rights under the 5th
and 14th Amendments, and the fourth cause of action alleges a violation of
Claimant's 8th Amendment rights. To the extent that the claim alleges
violations of the United States Constitution, they are all dismissed because the
Court of Claims does not have jurisdiction over federal constitutional tort
claims as the State is not a person within the meaning of 42 USC §1983
(Will v Michigan Dept. of State Police, 491 US 58; Monell v Dept. of
Social Services of City of New York, 436 US 658).
In his reply papers, Claimant professes that his lay status and lack of
professional assistance led him to include references to the United States
Constitution, rather than the New York State Constitution. Even allowing for
such inadvertent references, to the extent that the claim herein raises
allegations sounding in violation of the State constitution, such causes of
action must also be dismissed.
Claimant's notice of motion here, while noticing that it seeks to strike
certain affirmative defenses, asserts that his claim is for medical negligence.
Indeed, a fair reading of the claim would indicate that medical
negligence/malpractice is the most apt description of his basic allegations.
Tort claims seeking monetary damages for alleged violations of rights guaranteed
by the State Constitution are recognized in relatively rare situations, where
such claims are "necessary and appropriate to ensure the full realization of the
rights they state" (Brown v State of New York, 89 NY2d 172, 189).
The constitutional tort remedy recognized in Brown, supra,
is only appropriate, inter alia, where a claimant has no common law or
statutory remedy available (Augat v State of New York, 244 AD2d 835,
lv denied 91 NY2d 814). Here Claimant's constitutional rights can
be addressed by legal remedies sounding in medical negligence/malpractice.
Unlike the claimants in Brown who were limited to recovery by that action or
nothing, here these remedies are available to Claimant, and an implied
constitutional tort remedy is not (Bullard v State of New York, 307 AD2d
676; and see Lyles v State of New York, 194 Misc 2d 32,
affd 2 AD3d 694). Accordingly, Claimant's state constitutional
claims are dismissed.
As to those claims that can be read as sounding in medical
negligence/malpractice, the State's motion to dismiss, based primarily on
untimeliness, is denied. The notice of intention refers to medical treatment
for Claimant's injury in August 2002 including the insertions of pins in his arm
and a cast, continuing through to January 2003 when the cast and pins were
removed, to February 2003 for the beginning of physical therapy, to March 2003
when Claimant was still complaining of and being treated for pain and stiffness
in his hand and wrist through April 8, coincident with the preparation and
service of the notice of intention on April 21, 2003. This seemingly ongoing
medical treatment was continuing through the dates noted above, and the notice
of intention , served on April 21, 2003, and the claim, filed on June 23, 2003,
certainly appear to have been timely, as the notice of intention was served
within 90 days of the ongoing medical treatment, and the claim having been
served and filed just some two months later, also appears timely (Court of
Claims Act §10  and §11[a]).
Claimant has moved to strike certain affirmative defenses alleged in the
Defendant's answer. Generally the Defendant opposes the striking of the
affirmative defenses, arguing that Claimant's grounds basically rely upon his
disagreement with the defenses, without any sufficient basis therefor. I will
address each such affirmative defense seriatim.
The first affirmative defense alleges that the claim fails to state a cause of
action against the State of New York. A pleaded defense of failure to state a
cause of action is harmless surplusage. Thus the motion to strike is unnecessary
and is denied (Pump v Anchor Motor Freight, 138 AD2d 849).
The second affirmative defense alleges a lack of jurisdiction over the claim.
I have already dismissed those causes of action sounding in constitutional tort,
the basis for Defendant's assertion of a lack of jurisdiction over such claims.
Thus, the basis of Defendant's second affirmative defense has been resolved.
Accordingly, Claimant's motion to strike the second affirmative defense is
The third affirmative defense alleges the lack of subject matter jurisdiction
because of Claimant's purported failure to timely and properly serve the claim
upon the Defendant. I have addressed the timeliness issue above, and no
assertion with respect to the manner of service is articulated in the
Defendant's moving papers. The affirmative defense itself does not
particularize how the claim was untimely or improperly served, as is required by
Court of Claims Act §11(c). Accordingly, Claimant's motion to strike the
third affirmative defense is granted.
The fourth affirmative defense alleges a lack of personal jurisdiction over the
Defendant for the purported failure to timely and properly serve the claim.
This affirmative defense suffers from the same lack of particularization as the
third affirmative defense, and as such, Claimant's motion to strike the fourth
affirmative defense is granted.
The motion to strike the fifth affirmative defense, alleging a lack of
jurisdiction because of untimely service of either a notice of intention or a
claim within 90 days of the date of the surgery on Claimant hand/wrist in August
2002 has been addressed above, where I denied Defendant's cross-motion to
dismiss based upon untimeliness. Accordingly, the motion to strike the fifth
affirmative defense is granted.
The sixth affirmative defense alleges the deficiency of the claim in its
purported failure to comply with the provisions of Court of Claims Act §11.
Defendant asserts that it relies upon 22 NYCRR 206.6(b), relating to a schedule
showing in detail each item of damage claimed and the amount of such item, with
separately stated and numbered causes of action. While the Court of Appeals
noted in Lepkowski v State of New York (1 NY3d 201) that it is not the
State's burden to ascertain the items of damages or injuries and the total sum
sought, that case involved unpaid overtime compensation for a large number of
individuals, and the Defendant should not have been required to "ferret out or
assemble information that section 11(b) obligates the claimant to allege"
(Lepkowski v State of New York, supra, 1 NY3d at 208).
Here, however, in Paragraph 43, the claim alludes to future medical expenses,
loss of potential earnings, as well as pain and suffering and its companion
"mental anguish," albeit without specific amounts alleged. Given Claimant's pro
se status, and the itemization, albeit without specific amounts in the form of
an ad damnum, of the areas of damages sought, I will grant that part of
Claimant's motion seeking to strike this affirmative defense.
What remains after my rulings herein, is a claim that alleges only a cause of
action sounding in medical negligence/malpractice, and nothing else.
Accordingly, the motion and cross-motion are granted in part and denied in
Claimant is directed to serve and file an amended claim asserting only the
remaining cause of action within 45 days of service of a file-stamped copy of
this order. The Defendant shall serve and file its answer to said amended claim
within 40 days of its service. The Clerk is directed to serve the order herein
upon the parties.