New York State Court of Claims

New York State Court of Claims

SPRUILL v. STATE UNIVERSITY OF NEW YORK, UNIVERSITY HOSPITAL OF BROOKLYN DOWNSTATE MEDICAL CENTER, and STATE OF NEW YORK, #2006-030-562, Claim No. 111004, Motion No. M-71523


Synopsis



Case Information

UID:
2006-030-562
Claimant(s):
AMANI SPRUILL, an Infant under the Age of Seven (7) years, by her Mother and Natural Guardian, ALICIA BARRIERE, and ALICIA BARRIERE, Individually
Claimant short name:
SPRUILL
Footnote (claimant name) :

Defendant(s):
STATE UNIVERSITY OF NEW YORK, UNIVERSITY HOSPITAL OF BROOKLYN DOWNSTATE MEDICAL CENTER, and STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111004
Motion number(s):
M-71523
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
LAW OFFICES OF KENNETH A. WILHELMBY: STACEY A. GREY, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: ROSS N. HERMAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
August 21, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 4 were read and considered on Claimants’ motion to


dismiss Defendants’ Second Affirmative Defense:

1,2 Notice of Motion; Affirmation by Stacey A. Grey, Attorney for Claimants and attached exhibits

3,4 Filed Papers: Claim, Answer

No Opposition Filed

Claimants allege in Claim Number 111004 that Defendants’ agents at University Hospital of Brooklyn Downstate Medical Center failed to provide adequate prenatal care for Alicia Barriere and also failed to provide adequate medical care to both Ms. Barriere and Amani Spruill during the delivery of Amani Spruill, resulting in serious physical injury to Ms. Spruill, and economic loss and damages to Ms. Barriere. In the Answer, in addition to general denials, Defendants assert five affirmative defenses. The Second Affirmative Defense recites: “The claim fails to state a claim.” Presumably, what was intended was the more traditional assertion that the claim fails to state a cause of action, however, Defendants did not phrase the defense in that fashion, did not amplify it when asked to by Claimants in a Demand for a Verified Bill of Particulars as to Affirmative Defenses and did not respond to the present motion to dismiss the Affirmative Defense.[1]

Claimants have nonetheless been a bit more expansive in their application to dismiss, and have treated the affirmative defense as if it stated what Defendants might have intended to assert. In any event, the Court agrees that the Claim sufficiently complies with the pleading requirements of Court of Claims Act §11(b), in that it states when and where the claim arose, its nature, and the injuries and total sum claimed.

Accordingly, Claimants’ motion to dismiss Defendants’ Second Affirmative Defense [M-71523] is granted, and the defense is hereby stricken.

August 21, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. Asserting failure to state a cause of action as an affirmative defense has received somewhat inconsistent treatment in the judicial departments. Motions to strike the defense are routinely granted in the Second Department, which has proclaimed that “. . . ‘a[n affirmative] defense that a complaint does not state a valid cause of action cannot be interposed in an answer’. . . (citations omitted)” [Guglielmo v Roosevelt Hospital Staff Housing Co., 222 AD2d 403, 404 (2d Dept 1995)], with the thought being that if defendants want to test the sufficiency of a complaint, they should make a motion to dismiss pursuant to Civil Practice Law and Rules §3211(a)(7). Elsewhere such a defense is viewed as “harmless surplusage”, and a motion to strike is viewed as unnecessary, [See Pump v Anchor Motor Freight, Inc., 138 AD2d 849, 851 (3d Dept 1988)]; particularly since “. . . it may be asserted at any time even if not pleaded (CPLR 3211, subd (e)].” Riland v Frederick S. Todman & Co., 56 AD2d 350, 352 (1st Dept 1977); see also Salerno v Leica, Inc., 258 AD2d 896 (4th Dept 1999). This claim accrued in the Second Department.