Letter of Opposition, with Attachments, from the Oneida County Department of Law
Notice of Motion for Partial Summary Judgment, Affidavit in Support
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
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
(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
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
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.