New York State Court of Claims

New York State Court of Claims

MITCHELL v. THE STATE OF NEW YORK, #2006-009-025, Claim No. 111757, Motion Nos. M-71167, M-71275, M-71276


Claimant’s motions for summary judgment, dismissal of defendant’s affirmative defenses and poor person relief were all 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-71167, M-71275, M-71276
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General
BY: Thomas M. Trace, Esq.,
Senior AttorneyOf Counsel.
Third-party defendant’s attorney:

Signature date:
May 4, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought three motions with respect to this claim. In Motion No. M-71167, claimant seeks poor person relief. In Motion No. M-71275, claimant seeks an order dismissing defendant’s Demand for a Verified Bill of Particulars, discovery demands, and its Verified Answer, and also seeks an order of summary judgment on one of the causes of action asserted in this claim.

In Motion No. M-71276, claimant seeks an order dismissing all of the affirmative defenses set forth in defendant’s Verified Answer. For purposes of judicial economy, these three motions will be considered herein.

The following papers were considered by the Court in connection with these motions:
“Affidavit for Poor Person” (M-71167) 1

Affirmation in Opposition (M-71167) 2

Affidavit of Mailing upon the Oneida County Attorney (M-71167) 3

Letter of Opposition, with Attachments, from the Oneida County Department of Law (M-71167) 4

Notice of Motion for Partial Summary Judgment, Affidavit in Support (M-71275) 5,6

Affirmation in Opposition, with Exhibits (M-71275) 7

Notice of Motion to Dismiss Defense, Affidavit in Support (M-71276) 8,9

Affirmation in Opposition, with Exhibits (M-71276) 10

Filed Papers: Claim, Answer

In his claim, claimant has asserted two separate and distinct causes of action. The first cause of action sounds in dental malpractice, as claimant alleges that he was denied dental treatment for a period of three months in retaliation for his refusal to consent to the extraction of one of his teeth. His second cause of action sounds in unlawful imprisonment, based upon allegations that he was convicted of certain criminal charges after the underlying indictment had been dismissed and then allegedly untimely re-presented to another grand jury.

In Motion No. M-71275, claimant seeks an order granting him summary judgment on his second cause of action, apparently contending that the State, in its Answer, did not adequately deny, in sufficient detail, his allegations that proper procedures were not timely followed after his original indictment was dismissed.[1] As part of the relief sought in this motion, claimant therefore seeks an order striking the defendant’s Answer, as well as striking the defendant’s Demand for a Verified Bill of Particulars and its discovery demands.

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).

In this particular claim, there certainly exists not only material issues of fact, but also questions of law (in particular, the res judicata effect of claimant’s criminal conviction and subsequent appeal) which must be resolved prior to any judgment being granted.

Furthermore, the fact that claimant is dissatisfied with the denials made by defendant in its Answer is not sufficient, in and of itself, to establish a basis for summary judgment (see Siegel, NY Prac § 221, at 366 [4th ed]).

Furthermore, and with specific reference to claimant’s request to strike defendant’s Answer, there is no motion available under the CPLR to strike denials (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3018:4). Additionally, in this motion claimant has not set forth any arguments whatsoever to justify striking defendant’s Demand for a Verified Bill of Particulars or its discovery demands. Claimant has not even alleged, let alone established, any “unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice” as required by CPLR § 3103(a).

As mentioned above, claimant has also brought a motion (M-71276) seeking an order dismissing the five Affirmative Defenses asserted by the defendant in its Verified Answer.

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. The Court has also reviewed claimant’s affidavit submitted in support of this motion and finds that it is merely argumentative, reflecting his disagreement with the five Affirmative Defenses asserted by the defendant. Claimant, however, has not presented any proof whatsoever that would, at this stage of the proceedings, justify dismissal of the defenses raised by the defendant in its Answer. (Arquette v State of New York, supra).

The Court does note, however, that the defendant, in its response to this motion, has voluntarily withdrawn its first Affirmative Defense alleging improper service of the claim. Additionally, the Court notes that with regard to the defense of failure to state a cause of action (Second Affirmative Defense), a motion to dismiss such a defense is unnecessary as it is harmless surplusage (see Pump v Anchor Motor Freight, Inc., 138 AD2d 849).

Finally, the Court will address claimant’s motion seeking permission to proceed as a poor person and for the assignment of counsel (M-71167).

The Court notes that the filing fee required for this claim has previously been determined pursuant to Court of Claims Act § 11-a(1) by an order of Presiding Judge Richard E. Sise, dated and filed January 9, 2006.

Since there are no other costs in this Court, the only relief available under CPLR § 1102 that claimant can be seeking is the assignment of an attorney, who would serve without compensation. The decision to assign counsel is a matter of judicial discretion, and such an assignment is not an absolute right in civil litigation (Matter of Smiley, 36 NY2d 433). The allegations made in this claim establish to the satisfaction of the Court that this is the type of claim that would typically be handled by an attorney on a contingent fee basis. There is no indication that claimant has made any effort whatsoever to obtain an attorney who would represent him on such a basis. Furthermore, the Court finds that this case does not warrant the exercise of discretion in assigning counsel under the standards of Matter of Smiley, supra.

In accordance with the foregoing, therefore, it is

ORDERED, that Motion Nos. M-71167, M-71275 and M-71276 are all hereby DENIED.

May 4, 2006
Syracuse, New York

Judge of the Court of Claims

[1]. The Court notes, with considerable interest, that claimant’s appeal of his criminal conviction was upheld by the Appellate Division, Second Department (People v Mitchell, 303 AD2d 422), and leave to appeal to the Court of Appeals was also denied (100 NY2d 564), as well as an application for reconsideration (100 NY2d 597).