New York State Court of Claims

New York State Court of Claims

LAROCCO v. THE STATE OF NEW YORK, #2006-009-015, Claim No. 110382, Motion Nos. M-69843, M-70478


Claimant's motions for an order striking defendant's answer and for summary judgment were both denied.

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-69843, M-70478
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General
BY: Saul Aronson, Esq.,
Belinda A. Wagner, Esq.,
Assistant Attorneys GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
March 7, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought a motion (M-69843) seeking an order striking the defendant's Answer. Additionally, claimant has brought a second motion (M-70478) seeking an order granting him summary judgment on this claim. For purposes of judicial economy, both of these motions will be considered herein.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affirmation in Support (M-69843) 1,2

Affirmation (In Opposition) (M-69843) 3

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 judgment.

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.

March 7, 2006
Syracuse, New York

Judge of the Court of Claims