New York State Court of Claims

New York State Court of Claims

JENNINGS v. THE STATE OF NEW YORK , #2004-030-575, Claim No. 109448, Motion No. M-68906


Synopsis



Case Information

UID:
2004-030-575
Claimant(s):
MICHAEL JENNINGS
Claimant short name:
JENNINGS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109448
Motion number(s):
M-68906
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
MICHAEL JENNINGS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: JAMES L. GELORMINI, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
September 15, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 4, were read and considered on Claimant's motion


for an Order, pursuant to Civil Practice Law and Rules §3211, dismissing defenses:

1,2 Notice of Motion; Affidavit in Support of Motion to Dismiss Defense by Michael

Jennings, Claimant

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 instances enumerated."

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 deficient.

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.

September 15, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims