New York State Court of Claims

New York State Court of Claims

LINEBERGER v. THE STATE OF NEW YORK, #2007-044-555, Claim No. 112585, Motion No. M-73196


In inmate claim for medical malpractice/negligence, Court dismisses affirmative defenses of failure to particularize claim, and failure to mitigate damages allegedly due to inmate's failure to request outside medical evaluation

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):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 24, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim alleging medical malpractice and/or medical negligence. Defendant State of New York (defendant) answered and asserted various affirmative defenses. Claimant thereafter moved to file supplemental pleadings (Motion No. M-72260) and to dismiss the affirmative defenses (Motion No. M-72261). The Court found that claimant could amend his claim as of right and that Motion No. M-72260 was moot (Lineberger v State of New York, Ct Cl, Nov. 14, 2006, Schaewe, J., Claim No. 112585, Motion Nos. M-72260, M-72261). Because defendant served a Verified Supplemental Answer (containing identical affirmative defenses as the Verified Answer), claimant’s Motion No.

M-72261 to dismiss the affirmative defenses in the original Verified Answer was also moot (id.). However, the Court addressed the motion in the interest of judicial economy, and finding that claimant failed to provide any proof that the affirmative defenses could not be maintained, denied the motion (id.). Thereafter, claimant demanded a bill of particulars and defendant responded. Claimant now moves “to Dismiss Defendants [sic] Affirmative Defenses Contained in the Bill of Particulars.” Defendant opposes the motion. “A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit” (CPLR 3211 [b]), and that party has the burden of establishing that the defense cannot be maintained (Paladino v State of New York, Ct Cl, Sept. 15, 2005, Schweitzer, J., Claim No. 110824, Motion No. M-70372, [UID # 2005-036-102]). In its Verified Supplemental Answer, defendant asserted four affirmative defenses to this claim: failure to particularize the details of the claim, failure to mitigate damages, collateral estoppel, and, with respect to claims of medical malpractice made on the basis of lack of informed consent, a statutory defense under Public Health Law § 2805-d.[1]

Defendant amplifies each affirmative defense in its bill of particulars filed February 1, 2007. With respect to the first affirmative defense that claimant failed to particularize the details of the claim, defendant asserts that claimant has not stated how defendant deviated or departed from the accepted standard of medical care or how such deviation was the proximate cause of claimant’s injuries. Claimant counters that the affirmative defense has no merit and describes at length both the considerable delay in addressing his medical complaints and the physical abuse of claimant allegedly committed by the physician treating him.

Claimant’s argument has merit. In the claim filed on July 31, 2006, claimant alleges that after numerous complaints of abdominal pain and rectal bleeding, he was finally examined by a physician on June 8, 2006. Claimant states that the physician did not properly treat his symptoms and actually made them worse through physical and/or sexual abuse, which he sets forth in great detail. In the document entitled “amendments and supplemental claims/pleadings,” claimant alleges that he began complaining as early as April 2006 that he was suffering pain in his abdomen, rectum, and anus and that he was having bloody stools. Claimant states that he did not see the physician until June 2006 and that even after receiving mild pain medication and a stool softener, he did not receive any relief from the symptoms. Claimant alleges that he was ultimately referred to an outside medical specialist in August 2006, but his ailments were still not diagnosed.

Contrary to defendant’s argument, claimant has alleged the nature of the claim - medical malpractice - with “a sufficiently detailed description of the particulars of the claim to enable [the State] to investigate and promptly ascertain the existence and extent of its liability” (Matter of O’Shea v State of New York, 36 AD3d 706, 707 [2007]; see Condolff v State of New York, 18 AD3d 797 [2005]; Browne v State of New York, Ct Cl, May 31, 2007, Ferreira, J., Claim No. 108262, Motion Nos. M-72435, M-72576, Cross Motion No. CM-72557 [UID # 2007-039-023]). Further, claimant specifically alleges that defendant’s failure to treat or diagnose his condition has caused him to suffer additional physical pain and mental anguish and the condition may now be more serious than if it had been promptly diagnosed. Accordingly, defendant’s first affirmative defense is stricken.

Defendant’s amplification of its second affirmative defense states that because claimant did not request an outside medical evaluation of the nature and extent of his alleged medical problems, he has failed to mitigate his damages. The affirmative defense of mitigation of damages may be appropriate in a malpractice or negligence action where there is evidence that the claimant did not “ ‘use reasonable and proper efforts to make the damage as small as practicable’ ” (Williams v Bright, 230 AD2d 548, 550 [1997], quoting Blate v Third Ave. R.R. Co., 44 App Div 163, 167 [1899], appeal dismissed 90 NY2d 935 [1997]; see also Novko v State of New York, 285 AD2d 696, 697 [2001]). “It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons” including proper diagnosis and treatment (Rivers v State of New York, 159 AD2d 788, 789 [1990], lv denied 76 NY2d 701 [1990]). Although claimant is allowed to seek an outside medical opinion under certain circumstances and at his own expense (see Morene v State of New York, Ct Cl, Mar. 14, 2007, Schaewe, J., Claim No. 109831 [UID # 2007-044-009]), defendant’s second affirmative defense impermissibly implies that a claimant is required to do so where he believes the medical treatment he is receiving is inadequate. The affirmative defense of mitigation of damages may be appropriate in a medical malpractice case where the claimant’s negligence, occurring after the defendant’s initial malpractice, increased his or her damages (see e.g. Dunn v Catholic Med. Ctr. of Brooklyn & Queens, 55 AD2d 597 [1976] [where the defendant was allowed to introduce evidence of the plaintiff’s failure to follow medical instructions as mitigation of damages]). However, such circumstances are not present in this action. In any event, claimant has now received an outside medical evaluation and procedure (colonoscopy) which contain several possible diagnoses and recommended treatments. Thus, the second affirmative defense lacks merit and is also stricken.

Defendant’s third affirmative defense is collateral estoppel, and defendant indicates that claimant’s allegations may have been the subject of a final and binding court ruling, barring him from bringing this claim. While the Court has not been made aware by the parties of any prior action between them which may have resulted in a determination adverse to claimant on the issues raised in this claim, claimant has not provided proof that this defense cannot be maintained, and his motion to strike this affirmative defense is therefore denied.

The fourth affirmative defense is that with respect to claims of medical malpractice made on the basis of lack of informed consent, defendant will invoke the statutory defenses under Public Health Law § 2805-d. In its bill of particulars, defendant states that it will specifically rely on the statutory defense that a fully informed reasonable person in the claimant’s position would not have refused to undergo the treatment or diagnosis and that such treatment or procedure was not the proximate cause of injuries.[2] In actuality, it is claimant’s burden to show as part of his prima facie case that “a reasonable, fully informed person in [claimant’s] position would not have undergone the treatment or procedure” (Santilli v CHP, Inc., 274 AD2d 905, 907 [2000]). Nonetheless, defendant’s assertion of such as a defense is akin to pleading the affirmative defense that a claim fails to state a cause of action and is at most “harmless surplusage,” and any motion to strike it “should be denied as unnecessary” (Pump v Anchor Motor Frgt., 138 AD2d 849, 850 [1988]; see Salerno v Leica, Inc., 258 AD2d 896 [1999]; Paladino v State of New York, supra).

Accordingly, claimant's motion is granted to the extent that defendant's first and second affirmative defenses are stricken.

July 24, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on April 2, 2007; Affidavit of Tony Lineberger sworn to on March 26, 2007, and attached exhibits.

2) Affirmation in Opposition of Roberto Barbosa, AAG, dated May 7, 2007.

Filed papers: Claim filed on July 31, 2006; Verified Answer filed on August 21, 2006; Amended Claim filed on September 11, 2006; Verified Supplemental Answer filed on October 2, 2006.

[1]. As previously stated, these four defenses are identical to the defenses contained in the original answer and addressed by the Court in the Decision and Order filed November 16, 2006.

[2]. The Court notes that this statement is not one of the statutory defenses contained in Public Health Law
§ 2805-d (4), but rather appears in Public Health Law § 2805-d (3).