Claimant moves pursuant to CPLR Rule 3211(b) to dismiss the defenses contained
in the defendant’s answer to the amended claim, on the grounds that they
fail to state a defense and that they “are meritless/baseless, or
frivolous.” Claimant also asks that the defendant’s answer to the
amended claim be stricken since defendant had served and filed a prior answer to
the amended claim. Finally, claimant moves for summary judgment on the claim.
Defendant opposes the motion as premature since it has had no opportunity to
engage in disclosure. Defendant also requests that the Court grant summary
judgment dismissing the amended claim because claimant served the amended claim
by regular mail rather than by personal service or by certified mail, return
receipt requested, which defendant alleges is required by Court of Claims Act
Claimant made a motion, filed on December 30, 2005, for permission to file and
serve an amended claim. Claimant’s motion was not opposed by defendant.
While the motion was pending, defendant served an answer to the proposed amended
claim on January 17, 2006. Claimant was, subsequent to that date, granted
permission to serve and file an amended claim by the Decision and Order of the
Honorable Judith A. Hard, filed on May 10, 2006.
The amended claim alleges that defendant, through its agents and employees,
committed dental malpractice and has been deliberately indifferent to
claimant’s medical needs. Claimant served the amended claim on
defendant’s attorney by regular mail on May 19, 2006.
The defendant served an answer to the amended claim on July 5, 2006. The answer
included the following defenses: That claimant’s culpable conduct caused
or contributed to the injuries and damages claimed; that the alleged acts and
omissions of defendant are privileged, immune, justified or otherwise excused;
that the amended claim is barred by arbitration and award, collateral estoppel
and res judicata; and that the Court lacks jurisdiction over the amended claim
since it was served by regular mail rather than by personal service or certified
mail, return receipt requested, as required by the Court of Claims Act.
Claimant filed this motion on August 7, 2006, thirty-three (33) days after
service of the answer to the amended claim and prior to any disclosure having
The Court finds that defendant’s January 17, 2006 answer was a nullity
since claimant had not yet received permission to serve and file the proposed
amended claim and the amended claim had, in fact, not yet been filed with the
clerk or served on defendant (see Luis v New York City Housing Authority,
309 AD2d 719 [1st Dept 2003]).
Because the defendant’s answer to the amended claim, prematurely served
on claimant on January 17, 2006, was a nullity, the claimant’s motion to
strike the defendant’s answer served on July 5, 2006, on the basis that it
amended the answer of January 17, 2006 without leave of court, is denied.
Pursuant to CPLR Rule 3211(b), a party may move to dismiss a defense on the
ground “that a defense is not stated or has no merit.” The
“movant bears the burden of coming forward with sufficient proof to
demonstrate that the defense cannot be maintained” (Arquette v State of
New York, 190 Misc 2d 676, 688 [Ct Cl 2001]) and “it is error for a
court to strike a defense when material issues of fact remain unresolved”
(Arquette, 190 Misc 2d at 688; see Matter of Harrison v State of New
York, 262 AD2d 833 [3d Dept 1999]). In deciding the motion, the court must
view the defenses in the light most favorable to the defendant, drawing all
reasonable inferences that are permissible, given the submitted proof (182
Fifth Ave., LLC v Design Development Concepts, Inc., 300 AD2d 198 [1st Dept
2002]; Capital Telephone Co. v Motorola Comm. and Electronics Inc., 208
AD2d 1150 [3d Dept 1994]).
Claimant’s motion to dismiss the defense alleging that claimant’s
culpable conduct caused or contributed to the injuries and damages alleged in
the claim is denied. Although claimant describes the defense as
“ludicrous” and asserts, in conclusory terms, that he “in no
way” contributed to defendant’s “failure and refusal to
provide him with adequate and proper dental care,” claimant has also
alleged causes of action for dental malpractice and negligence.
It is possible that disclosure, such as a deposition of claimant or a dental
record review or dental examination by defendant’s expert, could reveal
acts or omissions on claimant’s part which contributed to the injuries set
forth in the amended claim: “[S]ubstantial and extreme physical, mental,
and emotional pain, distress, anguish, and suffering, including - inter alia -
exacerbation and deterioration of his existing physical, mental, and emotional
disorders, due to deprivation of adequate nutrition.”
The Court also denies claimant’s request to dismiss the defense alleging
that the acts and omissions of defendant are privileged, immune, justified or
otherwise excused, to the extent that the challenged defense asserts that
defendant properly exercised professional dental or medical judgment within the
range of accepted dental or medical standards in its treatment of claimant.
“It is well settled that neither a medical provider ... nor the State or
governmental subdivisions employing the medical provider, may be held liable for
a mere error in professional judgment” (Ibguy v State of New York,
261 AD2d 510, [2d Dept 1999], lv denied 93 NY2d 816 ; Sciarabba
v State of New York, 182 AD2d 892, 893-894 [3d Dept 1992]). However, the
defense is dismissed to the extent that it would assert that the acts and
omissions complained of were discretionary and subject to the doctrine of
governmental immunity since it “is well settled that where the State
engages in a proprietary function such as providing medical and psychiatric
care, it is held to the same duty of care as private individuals and
institutions engaged in the same activity” (Rattray v State of New
York, 223 AD2d 356, 357 [1st Dept 1996]).
Defendant’s third defense, alleging that the amended claim is barred by
arbitration and award, collateral estoppel and res judicata, is dismissed since
defendant has offered no good faith basis for the defense. Claimant swears that
“there has been no arbitration or award, and the instant claims have not
been previously litigated.” The mere fact that disclosure has not yet been
undertaken is not enough, by itself, to deny a request to dismiss a pleading,
especially where the opponent of the relief sought fails to offer factual
opposition and fails to state how disclosure would prove the merit of the
challenged pleading (see Ben Soep Co., Inc. v Highgate Hall of Orange County,
Inc., 71 AD2d 825, 826 [4th Dept 1979]).
The motion to dismiss the defendant’s jurisdictional defense of improper
service of the amended claim will be considered in conjunction with the
defendant’s request to dismiss the amended claim.
Although defendant failed to serve a notice of cross-motion as required by CPLR
Rule 2215, the Court will consider the cross-motion for summary judgment
dismissing the amended claim since the Court “is not prohibited by CPLR
2215 from entertaining the motion in the absence of the explicit notice. Here,
the opposing party was aware of and responded to the cross motion and the
procedure was fair to the parties” (Fox Wander W. Neighborhood Assn. v
Luther Forest Community Assn., 178 AD2d 871, 872 [3d Dept 1991]; Wechsler
v People, 13 AD3d 941, 942 [3d Dept 2004]).
Claimant’s motion to dismiss the jurisdictional defense is granted and
defendant’s cross-motion for summary judgment is denied. The decision and
order of Judge Hard, which granted claimant permission to serve the amended
claim, did not set forth a manner of service and “once jurisdiction has
been obtained over a defendant who appears, an amended claim may be served in
accordance with CPLR 2103" (Rohany v State of New York
, 144 Misc 2d 940,
943 [Ct Cl 1989]; see Mazzaferro v State of New York
, [Ct Cl, Sise, J.,
). CPLR Rule 2103(b)(2)
permits service of papers by regular mail upon a party’s attorney.
Claimant also requests that the Court consider his papers as a motion for
summary judgment. “A motion for summary judgment should be entertained
only after the moving party has established, by competent admissible evidence,
that [he] is entitled to judgment as a matter of law.... If the movant meets
this initial burden, the opposing party is required to submit evidence which
raises a material issue of fact to preclude an award of summary judgment”
(Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).
The claimant’s motion for summary judgment is denied since claimant has
failed to provide competent admissible evidence showing that he is entitled to
judgment as a matter of law. Claimant has not shown that the dental treatment
provided to him by defendant deviated from the applicable professional standard
of care. "Where medical issues are not within the ordinary experience and
knowledge of lay persons, expert medical opinion is a required element of a
prima facie case" (Wells v State of New York, 228 AD2d 581, 582 [2d Dept
1996], lv denied 88 NY2d 814 ; see Tatta v State of New
York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 ). The
fact that claimant is proceeding pro se does not excuse the need for expert
medical opinion to demonstrate a deviation from the applicable professional
standard of care (Duffen v State of New York, 245 AD2d 653, 653-654
, lv denied 91 NY2d 810 ).