New York State Court of Claims

New York State Court of Claims

TAYLOR v. THE STATE OF NEW YORK, #2004-031-021, Claim No. 107432, Motion Nos. M-66987, M-67075, M-67152


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):
M-66987, M-67075, M-67152
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 30, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 12, were read on motions by Claimant for an order striking certain affirmative defenses asserted by Defendant, compelling disclosure from Defendant to Claimant and to another inmate, and compelling Defendant to send Claimant for treatment to a doctor not affiliated with Defendant:
1. Claimant's Notice of Motion (M-66987), filed June 18, 2003;
2. Claimant's unsworn Affidavit, dated June 14, 2003;
3. Claimant's Notice of Motion (M-67075), filed July 9, 2003;
4. Claimant's Notice of Motion (M-67152), filed July 24, 2003;
5. Claimant's unsworn Affidavit, dated July 18, 2003;
6. Claimant's correspondence, dated July 27, 2003;
7. Claimant's correspondence, dated August 5, 2003;
8. Affirmation of Heather R. Rubinstein, Esq. (M-66987), dated August 22, 2003;
9. Affirmation of Heather R. Rubinstein, Esq. (M-67075), dated August 22, 2003;
10. Affirmation of Heather R. Rubinstein, Esq. (M-67152), dated August 22, 2003; with attached exhibits;
11. Claimant's unsworn "Affirmation in Opposition to Affirmation in Opposition of Defendant," dated August 26, 2003;
12. Filed documents: Claim and Verified Answer. In this matter, Claimant has filed three separate motions relating to claim number 107432. Each motion is addressed in this decision. With his first motion (M-66987), Claimant requests that the Court strike each affirmative defense asserted in Defendant's Verified Answer. In his second motion (M-67075), Claimant requests that the Court compel Defendant to send Claimant for treatment to a doctor not affiliated with Defendant. With his third and final motion (M-67152), Claimant requests that the Court compel Defendant to let another inmate, an unlicensed podiatrist, review certain x-rays taken of Claimant that are in Defendant's possession and to otherwise compel disclosure.

In his underlying action, Claimant alleges medical malpractice and medical neglect relating to Defendant's failure to properly treat him for pneumonia. He alleges that this failure has resulted in permanent injuries to his lungs.
Claimant objects to each affirmative defense asserted in the answer and sets forth arguments that he asserts demonstrate that each asserted defense is without merit. In its opposition to this motion, Defendant has agreed to withdraw its first affirmative defense relating to the subject matter jurisdiction of the Court to entertain the claim. Defendant maintains that each of its other affirmative defenses, however, are validly asserted.

The Claimant, as the moving party, bears the burden of coming forward with sufficient proof to demonstrate that the defenses at issue cannot be maintained (Arquette v State of New York, 190 Misc 2d 676) and a court should not strike a defense when material issues of fact remain unresolved (Harrison v State of New York, 262 AD2d 833; Connelly v Warner, 248 AD2d 941). I find that Claimant has failed to come forward with any proof, let alone sufficient proof, that the remaining affirmative defenses cannot be maintained.

Additionally, pursuant to CPLR 3024 [b], "[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." Each of the remaining affirmative defenses at issue are standard affirmative defenses. Affirmative defenses are not dispositive of a claim and are merely assertions of a party. Absent prejudice, they should not be stricken (CPLR 3024; 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 3018.14). I find that none of these affirmative defenses are prejudicial or scandalous in any respect. The State properly asserted these affirmative defenses in its Verified Answer.
With his second motion (M-67075), Claimant requests that I compel Defendant to send Claimant to a doctor who is "outside the influence and employment of the DOCS." Claimant apparently believes that there is a conspiracy against him and that he will not be able to obtain proper treatment by any doctor affiliated with Defendant. If I had the authority to grant such a request, I would deny it, as Claimant has provided the Court with nothing except his own self-serving statements that proper care cannot be obtained through the Department of Correctional Services. In any event, Defendant correctly points out that the Court of Claims is a Court of limited jurisdiction. With limited exceptions, that do not apply in this matter, the Court may hear claims for money damages against the State only, and Claimant's request is outside of the jurisdiction of this Court (Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670). I should note that, with this motion, Claimant also requested that I conduct an in camera review of his x-rays. This request was apparently made to bolster his argument that he should be sent to an outside doctor. For the reasons set forth above, this request is also denied.

Finally, Claimant requests, almost in passing, that the Court compel discovery, stating that he has complied with Defendant's demands, but that "Defendant has not complied with anything." Claimant makes no reference to what this "anything" might be. He does not identify any outstanding demands, let alone provide information regarding when they were served, or any attempts the parties have made, short of motion practice, to solve this alleged discovery dispute. Defendant argues that it has sent responses to all of Claimant's outstanding demands. From the record before me, I have no choice but to deny this portion of Claimant's motion also.
With his final motion, Claimant requests that the Court compel Defendant to provide another inmate with the opportunity to review his x-rays. Apparently, this other inmate was, at one time, a licensed podiatrist. Defendant, among other things, raises questions about the propriety of another inmate reviewing such documents, but does not specifically set forth what security or safety concerns it might have if the motion were to be granted.

While the inmate podiatrist is not currently licensed, I note that "the lack of a medical license does not, in and of itself, disqualify a witness from testifying as an expert on a medical question" (Steinbuch v Stern, 2 AD3d 709, 710).

Defendant also argues, however, that Claimant has made no showing that the inmate podiatrist possesses the medical expertise to evaluate Claimant's alleged injuries. I agree. Claimant has failed to demonstrate that: 1) inmate podiatrist is willing to give expert testimony on his behalf, and 2) inmate podiatrist, a former licensed podiatrist, is qualified to provide expert testimony in this matter. I, therefore, deny Claimant's motion, but without prejudice, as an affidavit from the inmate podiatrist could, theoretically, satisfy these concerns, and demonstrate that the relief Claimant seeks is not inappropriate.

Therefore, it is hereby,

ORDERED, that Claimant's motion to strike Defendant's affirmative defenses (M-66987) is granted, in part, to the extent that Defendant's first affirmative defense is hereby stricken. This motion is in all other respects denied. And it is further,

ORDERED, that Claimant's motion (M-67075) to compel Defendant to send him to a doctor not affiliated with the Department of Correctional Services, for in camera review of his x-rays and to compel discovery is denied in its entirety. And it is further,

ORDERED, that Claimant's motion (M-67152) to compel Defendant to permit review of Claimant's x-rays by inmate podiatrist, is denied without prejudice.

April 30, 2004
Rochester, New York

Judge of the Court of Claims