Reply Affirmation, with Exhibits (M-69843) 4
Correspondence from Claimant dated July 10, 2005 (M-69843) 5
Notice of Motion, Affirmation in Support (M-70478) 6,7
Affirmation in Opposition (M-70478) 8
Reply Affirmation (M-70478) 9
Filed Papers: Claim, Answer.
In this claim, claimant seeks damages for personal injuries based upon
allegations of dental malpractice and negligent treatment. Claimant alleges
that State employees failed to provide him with adequate dental treatment and
medication at a time when he was incarcerated in the custody of the Department
of Correctional Services.
In these motions, claimant contends that each and every defense asserted by the
defendant in its Answer is without merit, and therefore claimant argues that the
defendant's Answer should be stricken and that he should be granted summary
A motion to dismiss a defense must be made on the ground that a defense is not
stated or that it has no merit (CPLR 3211[b]). In such cases, the movant has
the burden of coming forward with sufficient proof to establish that the defense
cannot be maintained (Arquette v State of New York, 190 Misc 2d 676). If
material issues of fact are unresolved, it is error for the Court to strike a
defense (Matter of Harrison v State of New York, 262 AD2d 833;
Connelly v Warner, 248 AD2d 941).
In this particular matter, the Court has reviewed the Verified Answer submitted
by the defendant in response to this claim, in which the defendant has
enumerated seventeen specific defenses. The Court has also reviewed claimant's
affirmation submitted in support of his motion (M-69843) and finds that it is
merely argumentative, setting forth his disagreement with the various positions
taken by the defendant. Claimant, however, has not presented any proof
whatsoever that would, at this stage of the proceedings, justify dismissal of
any of the defenses raised by the defendant in its Answer. (Arquette v State
of New York, supra). The Court does note, in passing, that with
regard to the defense of failure to state a cause of action (see Fourth
Defense), a motion to dismiss such a defense is unnecessary as is it harmless
surplusage (see Pump v Anchor Motor Freight, Inc., 138 AD2d 849).
Therefore, since the Court finds that defendant has properly asserted the
various defenses in its Answer, claimant's motion to strike the defendant's
Verified Answer (M-69843) must be denied.
Turning now to claimant's motion seeking summary judgment (M-70478), it is well
settled that summary judgment is a drastic remedy which deprives a party of its
day in court and should not be granted where there is any doubt as to the
existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943).
It is the procedural equivalent of a trial (Andre v Pomeroy, 35 NY2d
361). The role of the Court, therefore, on a motion for summary judgment is not
to resolve material issues of fact, but instead to determine if such issues
exist (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). In doing
so, the Court must examine the submitted proof in a light most favorable to the
party opposing the motion. Summary judgment may only be granted if the movant
provides evidentiary proof in admissible form to demonstrate that there are no
material questions of fact (Winegrad v New York Univ. Med. Center, 64
NY2d 851). The threshold to be met is high, since "there must be only one
conclusion that can be drawn from the undisputed facts" (Sanchez v State of
New York, 99 NY2d 247, 254). Negligence actions, including medical and
dental negligence and malpractice claims, are rarely appropriate for resolution
by summary judgment, since they typically involve numerous factual issues that
require an assessment of whether the defendant's actions were reasonable
(Davis v Federated Dept. Stores, 227 AD2d 514).
In support of his motion for summary judgment, claimant has only submitted his
personal affidavit, which reiterates and expands upon the allegations made in
his claim. He has not submitted any affidavit from an expert in dentistry, or
any other evidentiary proof, in support of his allegations. His conclusory
statements that the dental treatment he received was improper and insufficient
does not sustain his burden of proof to establish, as a matter of law, that this
treatment, or lack thereof, was the proximate cause of his injuries. In sum,
claimant has offered absolutely no evidentiary proof establishing his right to
summary judgment as a matter of law.
Accordingly, based upon the foregoing, it is
ORDERED, that Motion No. M-69843 and Motion No. M-70478 are both hereby DENIED
in their entirety.