New York State Court of Claims

New York State Court of Claims

STEWART v. THE STATE OF NEW YORK, #2004-013-047, Claim No. 107914, Motion Nos. M-67585, CM-67642


Claimant's motion to strike affirmative defenses is denied in part and granted in part. Defendant's motion to dismiss is denied in part and granted in part. Claimant will serve and file an amended claim asserting only the remaining cause of action of medical negligence and/or malpractice.

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:
Defendant's attorney:
Attorney General of the State of New York
BY: RICHARD B. FRIEDFERTIGAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 24, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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 2003.[1]

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 status.

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 [3] 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 granted.

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 part.

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.

September 24, 2004
Rochester, New York

Judge of the Court of Claims

  1. [1]Presumably Claimant means 2002, as August 2003 precedes the date of filing of the claim by two months. For purposes of this discussion, I will assume that Claimant's intention is 2002.