New York State Court of Claims

New York State Court of Claims

PRYCE v. STATE OF NEW YORK, #2005-018-459, Claim No. 109542, Motion No. M-69131


Synopsis


Claimant's motion is granted only to the extent that Defendant's third, fourth, and tenth affirmative defenses are dismissed. The balance of Claimant's motion is denied.

Case Information

UID:
2005-018-459
Claimant(s):
NEVILLE PRYCE
Claimant short name:
PRYCE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109542
Motion number(s):
M-69131
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
Neville PrycePro Se
Defendant's attorney:
Eliot Spitzer
Attorney General of the State of New York
By: Heather R. Rubinstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 17, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant brings a motion to dismiss Defendant's 11 affirmative defenses pursuant toCPLR 3211(b). Defendant opposes the motion.

Claimant filed a claim on June 28, 2004, sounding in medical malpractice. Claimant alleges that for two years and eight months, while an inmate at Riverview Correctional Facility and later at Cape Vincent Correctional Facility, he made repeated complaints to the eye doctor of pain in his eyes. Claimant was allegedly told that there was no problem with his eyes. Claimant has since been diagnosed with glaucoma, by the same doctor, and allegedly, told that he will go blind. This doctor has now referred him to a specialist.

Defendant interposed a verified answer to the claim which Claimant has misconstrued as a motion to dismiss. The verified answer is a responsive pleading and not a motion.

CPLR 3211(b) provides that: A party may move for judgment dismissing one or more defenses on the ground that a defense is not stated or has no merit. In deciding the motion, the Court must view the defenses in the light most favorable to the defendant, drawing all reasonable inferences that are permissible given the submitted proof (182 Fifth Ave., LLC v Design Development Concepts, Inc., 300 AD2d 198; Capital Telephone Co. v Motorola Comm. and Electronics Inc., 208 AD2d 1150).

Defendant has withdrawn its first and eighth affirmative defenses. Defendant's second affirmative defense provides that the claim fails to state a cause of action. Such a defense has been held to be harmless surplusage (Pump v Anchor Motor Freight, Inc., 138 AD2d 849).

Defendant's third affirmative defense asserts that the Court lacks subject matter jurisdiction over a claim alleging a federal constitutional violation. The claim itself makes no reference to any constitutional violation. Claimant, in his affidavit in support of his motion, however, asserts that his claim alleges a state constitutional violation over which this Court does have jurisdiction. Defendant, in opposition, provides that Claimant's notice of intention merely asserted that his constitutional rights were violated without specifying the state or federal constitution. Since Claimant has acknowledged that he is not pursuing a federal constitutional violation defendant's third affirmative defense is unnecessary and is hereby dismissed.

Defendant's fourth affirmative defense asserts that the acts complained of were discretionary and subject to the doctrine of governmental immunity. The actions of a State doctor in failing to timely diagnose a condition has been held to be a proprietary function and not subject to governmental immunity (see Rattray v State of New York, 223 AD2d 356, 357). No interpretation of the allegations in the claim would support a determination that the conduct of the facility's medical staff is subject to immunity. This defense is dismissed.

Defendant's fifth affirmative defense asserts Claimant's comparative negligence. At this stage of the proceedings, the facts have not yet been developed to exclude the possibility that Claimant engaged in some culpable conduct leading to his injuries.

The sixth affirmative defense asserts that the Court lacks jurisdiction to hear the claim because the claim and the notice of intention fails to satisfy the requirements of 22 NYCRR

§ 206.6. The Uniform Rules for the Court of Claims are not jurisdictional prerequisites, as the Court has the power to waive compliance with any of the rules (see 22 NYCRR § 206.1[b]). Although not jurisdictional, the claim does lack some of the information required by § 206.6, specifically a schedule showing in detail each item of damage claimed and the amount of each item, and for that reason this defense will not be dismissed. For the same reason, Defendant's seventh affirmative defense, asserting a failure to provide all of the information required by Court of Claims Act § 11(b) will not be dismissed.

Defendant's ninth affirmative defense asserts the claim is barred by the statute of limitations. Given Claimant's allegations that his complaints about his eye problems began two years and eight months before he filed his claim, there is certainly the possibility that some portion of his claim is barred by the statute of limitations. This defense will not be dismissed.

Defendant alleges that the State, through its agents or employees, took actions which were privileged as being judicial, quasi-judicial, or discretionary determinations and are immune from liability for its tenth affirmative defense. Again the discretionary determinations of the medical staff in treating an inmate patient are not subject to immunity. This defense is dismissed.
The eleventh affirmative defense asserts that the Court lacks subject matter jurisdiction to

hear the claim because the claim was not filed with the Clerk within ninety days of the date of accrual in accordance with Court of Claims Act § 10(3). Without the specific dates for when Claimant sought treatment and was ultimately diagnosed with glaucoma, the Court cannot find as a matter of law that this defense lacks merit.

Accordingly, based upon the foregoing Claimant's motion is granted only to the extent

that Defendant's third, fourth, and tenth affirmative defenses are dismissed. The balance of Claimant's motion is denied.



March 17, 2005
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion................................................................................................1


Affidavit of Neville Pryce, in support................................................................2


Affirmation of Heather R. Rubinstein, Esquire, Assistant Attorney

General, in opposition............................................................................3


Filed Documents:


Claim..................................................................................................................4


Verified Answer.................................................................................................5