New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2004-032-023, Claim No. 107734, Motion Nos. M-67686, M-67687, CM-67712


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-67686, M-67687
Cross-motion number(s):
Claimant's attorney:
Julio I. Smith, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Glenn C. King, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
March 22, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arose in the hospital yard of Clinton Correctional Facility in February 2002. Claimant alleges that while he was suffering from a throat infection, he was subjected to the presence of smokers. He also alleges that he was treated with deliberate indifference, being given food inappropriate for his heart condition on at least one occasion, among other things. In Motion No. M-67686, claimant seeks the production of certain documents within the custody and control of the Department of Correctional Services (DOCS); in Motion No. M-67687, claimant moves to strike defendant's affirmative defenses; and in Cross Motion No. CM-67712, defendant moves for an order dismissing the claim on the ground that it was not verified.

Motion No. M-67687: Motion to Strike Affirmative Defenses

It its answer to this claim, the State raised six affirmative defenses: 1) claimant's culpable conduct, 2) negligence of third parties, 3) assumption of risk, 4) failure to state a cause of action, 5) lack of verification, and 6) untimeliness of any portion of the claim that occurred more than ninety days prior to the date the claim was served, May 12, 2003.

Affirmative defenses are to be set forth when there are 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" (CPLR 3018). Parties on whom an opponent's affirmative defenses are served may simply accept that knowledge and plan their case accordingly; move for a more particular statement if the allegations are confused or unclear (CPLR 3024 [a]); serve a demand for a bill of particulars with respect to the defense (CPLR 3041); or move to dismiss or strike a defense on the ground that it "is not stated or has no merit" (CPLR 3211 [b]; Winter v Leigh-Mannell, 51 AD2d 1012 [2d Dept 1976]). Such a motion should not be granted if there is any doubt as to the availability or applicability of a defense, or when material issues of fact remain unresolved (Matter of Harrison v State of New York, 262 AD2d 833 [3d Dept 1999]; Connelly v Warner, 248 AD2d 941 [4th Dept 1998]; Krantz v Garmise, 13 AD2d 426 [1st Dept 1961]; Ruffing v Union Carbide Corp., 186 Misc 2d 679 [Sup Ct, Westchester County 2000]).

The moving party bears the initial burden of challenging the factual basis of the defense, and typically this is met by use of an affidavit based on personal knowledge or other evidentiary proof (Arriaga v Michael Laub Co., 233 AD2d 244 [1st Dept 1996]). In any event, the movant must come forward with sufficient proof to demonstrate that the defense cannot be maintained (1 Weinstein-Korn-Miller, CPLR Manual § 21.05; City of New York v Mills, 1996 WL 882642 [Civ Ct, NY County, 1996, Stallman, J.]). The defendant is entitled to the benefit of every reasonable construction of the pleading: "If there is doubt as to the availability of a defense, it should not be dismissed" (Duboff v Board of Higher Educ. of City of New York, 34 AD2d 824 [2d Dept 1970]; see also Pellegrino v Millard Fillmore Hosp., 140 AD2d 954 [4th Dept 1988]).

Defendant's fifth affirmative defense must be stricken as a matter of law, and, for the same reason, defendant's cross motion to dismiss must be denied. In a recent decision, Lepkowski v State of New York (1 NY3d 201 [2003]), the Court of Appeals has made it clear that, with respect to practice in the Court of Claims, the remedy for a missing or defective verification is the procedure set forth in CPLR 3022, rejecting the unverified pleading with "due dilligence." As this was not done in this case, the fifth affirmative defense has no merit. The absence of a verification that was noted only in the answer cannot result in dismissal of the action.

Defendant's sixth affirmative defense, untimeliness or perhaps partial untimeliness, must also be stricken. Section 11(c) of the Court of Claims Act requires that defendant must raise "with particularity" any defense based on untimeliness or improper service either in the answer or a pre-answer motion. The purpose of requiring particularity is to inform the claimant, who may be unfamiliar with Court of Claims practice, of the nature of the defense being asserted. This requirement was enacted to avoid having claimants engage in "guess work" about the nature and specifics of an affirmative defense (Sinacore v State of New York, 176 Misc 2d 1, 8 [Ct Cl 1998]). With respect to defenses alleging untimeliness, the judges of this Court have held that, at a minimum, defendant must refer to the statutory authority that has been violated and the time period within which the filing (and/or service) should have occurred (id., at 7; see also Fowles v State of New York, 152 Misc 2d 837, 840 [the statement should gives "notice of the transaction or occurrence intended to be proven and the material elements of it"]). Defendant's answer filed in this claim states, as the sixth affirmative defense, that any claim occurring more than ninety days prior to the date of service "is time barred pursuant to Section 16 of the Court of Claims Act which required service of the notice of intention or the claim to be done within 90 days of the accrual date" (Answer, ¶ Eleventh). Undoubtedly, this was a typographic error, as section 16 of the Act relates to special procedures for evidence in appropriation cases while section 10 governs claims for bailment and most other actions based on negligence. Nevertheless, defendant has failed to properly comply with the "particularity" requirement of section 11(c) and, as a result, the defense of untimeliness has been waived.

With respect to defendant's first four affirmative defenses, claimant has not met his burden of coming forward with sufficient proof to demonstrate that these defenses cannot be maintained. His objections to defendant's answer do not consist of documentary proof or statements made on personal knowledge showing that there is no possible merit to each of the defenses. Claimant would be better served to demand from defendant a bill of particulars with respect to each defense after defendant has had time to conduct the necessary investigation.

Motion No. M-67686: Motion to Compel Production of Documents

Claimant's original demand for production of documents was served on defendant on July 23, 2003. According to claimant, defense counsel never responded in any fashion to that demand. Counsel for defendant acknowledges that this is the case, and apologizes for the failure to respond. There was a legitimate reason for non response. Claimant's demand was not properly captioned as a discovery demand but, rather, was entitled "Motion for Production of Documents." As counsel explains, this document was held by the Attorney General's office awaiting notification of a motion number and return date from the Court. The same document was not treated as a motion by the Court Clerk's office, however, and consequently such notification never arrived (King affirmation, ¶8). In the interest of judicial economy, the Court will now consider and rule upon claimant's six demands.

Demands for discovery of documents and things "shall set forth the items to be inspected, copied, tested or photographed by individual item or by category, and shall describe each item and category with reasonable particularity." (CPLR 3120[2]). The demands set forth by claimant in his improperly captioned submission are the following:

1) A list of the documents that are produced by defendant in response to the demand.

This demand is improper in that a party is not required to create a document in response to a demand for discovery (Durham Med. Search v Physicians Intl. Search, 122 AD2d 529 [4th Dept 1986]).

2) A copy of the complaint filed against Officer Goat for smoking in the hospital's mental health unit of Clinton Correctional Facility.

This demand appears to be proper as long as a document of this description exists.

In the event that this or any other responsive document contains some information that defendant considers confidential or to implicate the security of the facility, counsel for defendant should submit two copies of such document to the Court for in camera inspection. One copy should be in original form, and the second document should indicate the redactions that defendant believes are necessary to protect security and privacy interests. The Court will consider the requested redactions and direct the terms under which the document can then be released.

3) A copy of the investigation report produced in connection with claimant's grievance filed in February and March 2003, Grievance No. 48082-03.

This demand appears to be appropriate and to describe the document sought in sufficient detail.

4) A copy of the Statewide No Smoking policy and the date it was implemented.

This demand is appropriate, but defendant is not under an obligation to provide the date of implementation unless that information is incorporated in the document.

5) Entire copy of claimant's medical chart

Claimant is entitled to these records, so long as he agrees to pay the appropriate copying fee (25 cents per page) or agrees to physically examine the records and either copy entries by hand or select specific pages that he wishes to have copied for a fee.

6) A copy of the memo handed down by the Superintendent of Clinton Correctional Facility which was implemented as a result of Grievance No. 48082-03.

This is an appropriate request, if such a memo exists.

Claimant's motion to strike is granted in part and denied in part, as set forth above; claimant's motion to compel the production of documents is granted to the extent set forth above; and defendant's cross motion to dismiss is denied.

March 22, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motions for the production of certain documents and to strike the Affirmative Defenses and Defendant's cross-motion to dismiss the claim.
1. Notice of Motion No. M-67686 and Supporting Affidavit of Julio I. Smith, pro se

2. Notice of Motion No. M-67687 and Supporting Affidavit of Julio I. Smith, pro se

3. Notice of Cross Motion No. CM-67712 and Supporting Affirmation of Glenn C. King, Esq., AAG, with annexed Exhibits

Filed papers: Claim; Answer; Demand for Production of Documents