3,4 Filed Papers: Claim, Answer
NO OPPOSITION FILED
After carefully reviewing the papers submitted and the applicable law the
motion is disposed of as follows:
Michael Jennings, the Claimant herein, alleges in Claim Number 109448, that
defendant's agents failed to provide him with adequate medical care while he was
in the custody of the New York State Department of Correctional Services
(hereafter DOCS) at various correctional facilities. In its Answer, in addition
to general denials, Defendant asserts ten Affirmative Defenses, including the
First Affirmative Defense of contributory negligence and the Sixth Affirmative
Defense alleging that the claim is time-barred because the Notice of Intention
to file a Claim was not timely served, and thus did not extend the time to serve
and file the Claim.
Claimant now moves to dismiss the First and Sixth Affirmative Defenses. The
Defendant has not submitted any papers in opposition to the motion.
Civil Practice Law and Rules §3211(b) provides in pertinent part: " A
party may move for judgment dismissing one or more defenses, on the ground that
a defense is not stated or has no merit." Since the Defendant has chosen not to
oppose the motion, only the Claimant's assertions are before the Court for
review. He states he served a Notice of Intention to file a claim on the
Attorney General on November 29, 2003. Claimant indicates in his Claim that it
is "ongoing," and no more specific date of accrual is alleged in the Claim.
Instead, he refers to various acts of alleged medical malpractice, including
failure to provide him with narcotic medication to alleviate chronic lower back
pain, spinal injury and leg injuries; starting when his incarceration in State
custody commenced in September 2000. The Claim was filed on June 7, 2004.
An affirmative defense is raised in an Answer to provide adequate notice to the
Claimant of issues of law or fact that the Defendant may raise at trial or in
later motion practice. Cipriano v City of New York, 96 AD2d 817 (2d Dept
1983). Indeed, Civil Practice Law and Rules §3018(b), concerning
responsive pleadings, provides in pertinent part that a ". . . party shall
plead all 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 such as . . . collateral estoppel, culpable conduct . . . or statute of
limitation. The application of this subdivision shall not be confined to the
A contributory negligence defense is fact driven, and would depend on the
medical treatment prescribed by State personnel, and the Claimant's readiness to
cooperate with his treatment. At this early phase of the litigation, when no
discovery has been conducted, it would be premature to dismiss this defense even
if it should later prove to have been unsustainable. Claimant does not allege -
although it is not his burden to do so ultimately at trial - that he had no part
in exacerbating his condition in some fashion or worsening his condition.
Without discovery, it is difficult to tailor any defenses more narrowly.
Accordingly, this aspect of Claimant's motion is denied in that Claimant has not
shown how the First Affirmative Defense lacks merit or is otherwise
With respect to the defense concerning the statute of limitations however,
Claimant's assertion that he served a Notice of Intention to file a Claim on
November 29, 2003 is taken at its face value, as is his apparent assertion of
the continuous treatment doctrine. It is noted that service of the Notice of
Intention severs any further claims of malpractice, and ends any toll of the
statute of limitations premised on continuous medical treatment. See
Toxey v State of New York, 279 AD2d 927, 929 (3d Dept 2001); See
also Allende v New York City Health and Hosps. Corp., 90 NY2d 333,
339 (1997). Thus any acts of negligence asserted after November 29, 2003 would
not be considered.
Nonetheless, and based upon Defendant's failure to oppose the assertions that a
Notice of Intention was timely served and filed, Claimant's motion with regard
to the Sixth Affirmative Defense is hereby granted and the Sixth Affirmative
Defense is dismissed.
Accordingly, Claimant's motion number M-68906 is denied in part, and granted in
part, as noted above.