New York State Court of Claims

New York State Court of Claims

BENITO v. THE STATE OF NEW YORK, #2005-032-009, Claim No. 109209, Motion Nos. M-69236, M-69339


A motion for a more definite statement (CPLR 3024[a]) is not available to a party who is not required to frame a responsive pleading. The State is not liable for malpractice in the medical treatment of a prisoner performed by an independent contractor because the State owes inmate's a nondelegable duty, but it may be liable under the theory of agency by estoppel (compare, Rivers v State of New York, 159 AD2d 788, with Soltis v State of New York, 172 AD2d 919).

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-69236, M-69339
Cross-motion number(s):

Claimant's attorney:
Gene Benito, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Dennis M. Acton, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
February 17, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from allegedly inadequate medical treatment that claimant received in 2003 while he was incarcerated at Bare Hill Correctional Facility. Claimant presented complaints of ear pain and was told by a Dr. John Decker that he had an accumulation of fluid in his left ear, as well as an infection in that ear. Apparently he was also told that his left tonsil might be cancerous. Surgery was performed by Dr. Decker to remove both the accumulation of fluid and the tonsil. Sometime after the surgery, claimant began experiencing more pain and tenderness in the left ear and left throat area and had blood oozing from his left ear. After several visits to the facility infirmary and to at least one outside audiologist, claimant was informed that his left ear was permanently damaged and that he would lose 99 percent of the hearing in that ear.

Claimant alleges that this hearing loss resulted from Dr. Decker's failure to take x-rays of the area and/or to perform a biopsy of the tonsil prior to surgery. If such procedures had been performed, he contends, it would have been discovered that his tonsil was not cancerous and that its removal was not medically necessary. In its answer, counsel for the defendant State of New York raised the following affirmative defenses: claimant's culpable conduct or negligence of a third party contributing to the injury; privilege, immunity, and justification on the part of the State; and, alternatively, arbitration and award, collateral estoppel and res judicata.

In Motion No. M-69236, claimant seeks to have defendant "correct" its pleading, pursuant to CPLR 3024(a). This provision permits a party to move for a more definite statement "[i]f a pleading is so vague or ambiguous that a party cannot reasonably be required to frame a response." Claimant seeks this relief, he states, because defendant's "three affirmative

defenses . . . are so vague or ambiguous that claimant cannot reasonably be required to frame a response" (notice of motion, 2nd paragraph).

Claimant is not entitled to the relief that he seeks. A claimant in this Court, like a plaintiff in other courts, is not required – or permitted – to file and serve a another pleading in response to a defendant's answer. Consequently a motion brought pursuant to CPLR 3024(a) is not available to him:
The motion for a more definite statement is available only to a party who is required to respond to the objectionable pleading. It is usable by the defendant against the complaint, a co-defendant against a cross-claim, a plaintiff against a counterclaiming answer, etc. It is not available when no responsive pleading is required. It may not be used, for example, by a defendant against a reply, or by a plaintiff against an answer that contains no counterclaim; those pleadings require no responses.
(Siegel, Practice Commentaries, McKinney's Consol Laws of NY, Book 7B, CPLR 3024, C3024:2.). If claimant seeks more detailed information about the nature of defendant's affirmative defenses, he may make use of other procedural tools. Parties on whom an opponent's affirmative defenses are served may serve a demand for a bill of particulars with respect to these defenses (CPLR 3041) and/or they may 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]).

In addition to opposing claimant's motion, defense counsel has moved for summary judgment dismissing the claim (Motion No. M-69339). The motion is based on defendant's contention that the claim's allegations related to treatment that was provided to claimant by a Dr. Decker, who provided the treatment at Adirondack Medical Center. Defense counsel asserts that Dr. Decker is not a State employee and that Adirondack Medical Center is not owned, operated or maintained by the defendant State of New York.
In Rivers v State of New York (159 AD2d 788 [1990], appeal denied 76 NY2d 701 [1990]), the Third Department rejected the trial court's determination, on the ground of nondelegable duty, that the State of New York could be liable when a prison inmate was injured by the malpractice of an outside physician, an independent contractor, where there was no evidence that the State was on notice that the surgeon was inadequate and the element of control of the surgeon's work was missing. In Rivers, the surgeon only saw the inmate, after he was anesthetized, at the hospital where the surgery was performed.[1] The holding in Rivers did not control, however, in a somewhat similar situation, where the outside independent contractor examined the inmate patient at the facility and performed surgery on the patient at the facility, assisted by a facility nurse and with permission having been given by the inmate on a Department of Correctional Services release form (Soltis v State of New York, 172 AD2d 919 [3d Dept 1991]). In those circumstances, the appellate court determined the principle of agency by estoppel could apply and that "questions of fact exist[ed] as to whether claimant, in accepting the services of Scors, reasonably assumed that Scors was either employed by or acting on behalf of the State and, therefore, that Scors' services were offered by the State" (id., at 920). (See also, Malcolm v The Mount Vernon Hosp., 309 AD2d 704 [1st Dept 2003][question of fact as to whether the patient could have reasonably believed that a treating physician was acting on the defendant hospital's behalf]; Citron v Northern Dutchess Hosp., 198 AD2d 618, 620 [3d Dept 1993]["Although generally a hospital may not be held liable for the malpractice of a physician who is not an employee of the hospital, a hospital may be held vicariously liable for the acts of independent physicians if the patient enters the hospital through the emergency room and seeks treatment from the hospital, not from a particular physician." (citation omitted)]).

It is difficult to totally reconcile the holdings in Rivers (supra) and Soltis (supra), for the points of view are different and not necessarily mutually exclusive. The holding in Rivers focuses on the question of whether the State had control over the independent contractor physician's actions, and if a physician is truly an independent contractor, such control will be missing in almost all instances. Soltis, on the other hand, focuses on the patient's perception of whether the physician was acting at the behest, and presumably under the control, of the defendant. It is easy to imagine a situation in which the Department of Correctional Services lacked any control over the physician but the patient, nevertheless, reasonably believed that the physician was acting as an agent of that agency.[2] The Third Department has not provided any guidance as to how courts should resolve the issue when that occurs, that is, in situations where the holdings of both Rivers and Soltis would apply. Within the Court of Claims, some judges have considered the location of the treatment to be decisive (see, Moon v County of Erie, #2002-031-038, Claim No. 94792, Motion No. M-64706, Sept. 5, 2002, Minarik, J.; Williams v State of New York, #2002-013-504, Claim No. 98585, Feb. 7, 2002, Patti, J.), while others have considered the question to be an issue of fact dependent on all the surrounding circumstances (see, Funaro v State of New York, #2001-028-539, Claim No. 92739, Motion No. M-62869, June 22, 2001, Sise, J.; Lee v State of New York, #2000-005-539, Claim No. 96788, Motion No. M-62106, August 23, 2000, Corbett, J.).

In the instant motion, there is insufficient information with which to apply either of these criteria. Neither the claimant nor defense counsel informed the Court where Dr. Decker treated claimant and no other potentially relevant facts are provided by either party. Since the proponent of a motion for summary judgment bears the burden of establishing entitlement to judgment as a matter of law (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985] and defendant has failed to carry that burden, this motion will be denied.

Claimant's motion for a more definite statement is denied as improper, and defendant's motion for summary judgment is also denied.

February 17, 2005
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion to correct the pleadings

(Motion No. M-69236) and on defendant's motion for summary judgment dismissing the claim (Motion No. M-69339):

Motion No. M-69236
1. Notice of Motion and Supporting Affidavit of Gene Benito, pro se;

2. Affidavit in Opposition of Dennis M. Acton, Esq., AAG;

Motion No. M-69339

3. Notice of Motion and Supporting Affidavit of Dennis M. Acton, Esq., AAG;

Affidavit in Opposition (none received)

Filed papers: Claim; Answer

[1] Additional details are contained in the trial court decision (142 Misc 2d 563 [Ct Cl 1989]), which was subsequently reversed.
[2] Indeed, it could be argued that the inmate patient in Rivers may have reasonably perceived that he was being operated on by someone who was acting on behalf of the State. He was examined by a DOCS physician, Dr. Rosenfield, who determined that surgery was needed and then, because the facility had no surgical capability, he was sent to an outside hospital, anesthetized, and while unconscious, was operated on by someone who was, in fact, an independent contractor.