New York State Court of Claims

New York State Court of Claims

MENDEZ v. THE STATE OF NEW YORK, #2008-029-009, Claim No. 114154, Motion Nos. M-74313, M-74314


Affirmative defenses that merely express a legal conclusion, without supporting allegations of fact, are not properly before the court.

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-74313, M-74314
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Elyse Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 19, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Two motions are currently before the court: claimant’s motion “for permission to file a Traverse in response to the State’s Verified Answer” (M-74314) and claimant’s motion for permission to file a late claim (M-74313). [1]

The instant claim was filed August 29, 2007 and the State’s answer was filed October 9, 2007. Claimant’s two motions are in response to the defenses set forth in the answer. In particular, claimant’s motion for permission to submit a “Traverse” addresses the sufficiency of the affirmative defenses set forth in the answer and defendant has treated the motion, properly, as seeking dismissal of the affirmative defenses, which claimant characterizes as “legally insufficient.” In opposition to the motion, defendant addresses the alleged defenses and maintains that each of them is properly before the court.

Claimant alleges that she suffered personal injuries after falling on an inadequately-maintained walkway in front of the east wing at Bedford Hills Correctional Facility on January 23, 2007, that she received medical treatment from the providers at Bedford Hills commencing on the date of her injury and continuing through August 1, 2007. The claim was filed August 29, 2007 and served on August 31, 2007.

Generally, a party serving a responsive pleading is required to allege, as affirmative defenses, matters that if not pleaded “would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading” (CPLR 3018[b]). “Defenses which merely plead conclusions of law without supporting facts are insufficient and should be stricken” (Petracca v Petracca, 305 AD2d 566 [2d Dept 2003]; see also Plemmenou v Arvanitakis, 39 AD3d 612 [2d Dept 2007]; Glenesk v Guidance Realty Corp., 36 AD2d 852 [2d Dept 1971]). At the same time, “[i]f there is doubt as to the availability of a defense, it should not be dismissed” (Duboff v Board of Higher Educ. of City of N.Y., 34 AD2d 824 [2d Dept 1970]).

Defendant’s answer contains thirteen separately stated affirmative defenses. Four of them are defenses that are routinely asserted in personal injury claims of this type and which may well be applicable to the alleged facts of the claim: reduction of potential recovery by collateral source payments received by claimant (third); failure to mitigate damages (fifth), culpable conduct of claimant or others (sixth) and assumption of obvious risks (twelfth).

The first defense alleges that defendant’s employees took actions that were privileged as “judicial, quasi-judicial or discretionary determinations” and thus defendant is immune from liability. No facts are alleged in support of the contention that this claim raises issues of governmental immunity nor does it appear that the facts alleged in the claim in any way implicate a possible immunity defense. The claim alleges defendant is liable for “negligence of the State for failure to maintain the walkway” and for failure to “provide efficient and adequate medical care” (Claim, ¶ 2); i.e., routine premises liability and medical malpractice causes of action. Both of these matters implicate proprietary, not governmental, functions (Miller v State of New York, 62 NY2d 506 [1984]; Weiner v Metropolitan Transp. Auth., 55 NY2d 175 [1982];
Laura O. v State of New York, 202 AD2d 559
[2d Dept 1994]). In the absence of any factual allegations supporting the legal conclusion that governmental immunity may apply to this claim, the defense is not properly pleaded and not properly before the court.

The second defense alleges that defendant’s employees “acted properly, lawfully, without malice, with reasonable and probable cause, with reasonable force, in good faith and with legal justification.” There are no factual allegations in support of these legal conclusions. While the defense of lack of malice or probable cause might have relevance to a false arrest cause of action, and the defense of reasonable force might apply to a claim alleging that force was used against claimant, the court cannot conceive of how any of these defenses could be relevant to a premises liability or medical malpractice cause of action. Again, in the absence of any factual allegations setting forth how these matters, which appear foreign to premises liability and medical malpractice, apply to the claim, the defense is not properly pleaded and not properly before the court.

The fourth defense alleges that “[t]o the extent” that defendant’s employees were not acting in furtherance of the State’s business and acting outside of the scope of their employment, defendant is not liable. This is an accurate statement of the law, but it is not a proper defense. A proper defense, in a proper case such as one involving an intentional tort, would be that defendant’s employees were acting outside of the scope of their employment and that the State is therefore not liable. The defense seems to have no applicability to premises liability or medical malpractice, and there are no factual allegations indicating that it may have applicability. Like the first and second defenses, the expression of a bare legal conclusion as a defense without any apparent relevance to the allegations of the claim and without any factual allegations that would give rise to the defense is insufficient.

The seventh defense alleges that the claim “fails to state with any particularity the basis for monetary damages sought.” Court of Claims Act §11(b) requires that a claim set forth “the items of damage or injuries claimed to have been sustained.” The claim alleges that claimant sustained injuries to her left arm, left knee and right hand, severe mental anguish, constant and worsening pain in her left arm and tingling in her right hand, and further alleges that such injuries were caused by her fall and the allegedly inadequate medical treatment. In support of its defense, defendant submits that claimant “has failed to introduce a detailed estimate of her monetary damages, or any evidence of which it is based.” [2] Neither the Court of Claims Act nor any applicable caselaw requires a “detailed estimate” of monetary damages or “evidence” attached to the pleading. [3] The claim complies with § 11(b), at least insofar as the statement of the items of damage is concerned, and the seventh defense is without merit.

The eighth defense alleges “[t]o the extent that Claimant received care and treatment from personnel who are not state employees, the claim does not state a cause of action against the State.” While the conclusion that the State is not responsible for the conduct of non-employee medical providers is generally correct, [4] there are no factual allegations underlying the conclusion (see Sinacore v State of New York, 176 Misc 2d 1 [1998]; CPLR 3013). In any event it is not necessary for defendant to plead such a defense since it is part of claimant’s cause of action to establish that the State is responsible for the conduct of a provider found to have committed malpractice.

The tenth defense alleges that the claim fails to comply with Court of Claims Act §11 by failing to include “an adequate description of the lack of medical care, or any documentation evidencing lack of medical care.” In order to comply with §11, a claim must set forth its “nature” with sufficient specificity to allow defendant to conduct a prompt investigation (Lepkowski v State of New York, 1 NY3d 201 [2003];
Heisler v State of New York, 78 AD2d 767
[4th Dept 1980]). The claim herein complies with that standard and there is, of course, no requirement that a claimant append evidence documenting her medical care to her claim in order to properly plead a medical malpractice cause of action.

The answer does contain two jurisdictional defenses that are properly pleaded with sufficient factual allegations and language that complies with Court of Claims Act §11(c): the ninth defense, alleging the claim was served more than 90 days following accrual, and the eleventh defense, alleging the claim was served by regular mail rather than personally or by certified mail, return receipt requested. The lateness defense is partially meritorious, in that claimant’s fall occurred on January 23, 2007, she served her notice of intention on May 10, 2007 and the claim was not filed until October 29, 2007. As to the malpractice cause of action, claimant alleges a “course of treatment...[that] has run continuously and is related to the same original condition or complaint.” Borgia v City of New York (12 NY2d 151, 155 [1962]); see also Young v New York City Health & Hosps. Corp. (91 NY2d 291 [1998]); Ogle v State of New York (142 AD2d 37 [3d Dept 1988]). Thus, that portion of the claim appears to be timely interposed.

Addressing the eleventh defense, defendant states that the claim was served by regular mail and that “[i]f this is proven, the Court may dismiss the Claim.” [5] Although regular mail service would be dispositive of the claim, and the court does not doubt the veracity of counsel’s assertions that the claim was served by regular mail, [6] defendant did not submit a cross-motion seeking dismissal. Defendant opposes claimant’s motion seeking permission to late file, in which claimant acknowledges the jurisdictional infirmity of the claim, yet such a motion does not even become necessary unless and until the court dismisses the filed claim. Apparently, defendant’s preferred outcome is that the filed claim remain on the court’s calendar, despite the meritorious and dispositive jurisdictional defense, awaiting further motion practice, presumably in 2010 when the underlying statute of limitations expires. The court will not be part of such an approach.

Based on the papers before the court, including claimant’s admissions, the court concludes (1) that the claim was served by regular mail, in contravention of Court of Claims Act §11(a) which requires service by personal delivery or certified mail, return receipt requested, (2) that the jurisdictional defense was asserted in the answer with the particularity required by §11(c), and (3) that the court therefore lacks jurisdiction over Claim No. 114154. The court sua sponte dismisses the claim. Motion No. M-74314 is denied as moot.

Turning to claimant’s application pursuant to § 10(6), the court has the discretion to allow claimant to file a late claim, upon consideration of all relevant factors including whether claimant’s delay was excusable, whether defendant had timely notice of and the opportunity to investigate the essential facts constituting the claim, whether defendant would suffer substantial prejudice from an order allowing late filing, whether the claim has the appearance of merit and whether claimant has an available alternate remedy. While claimant’s expressed reasons for her failure to timely and properly comply with the requirements of the Court of Claims Act – that she is not a lawyer, that English is not her first language and that she received bad legal advice from an inmate clerk – do not render her delay in properly proceeding “excusable” within the meaning of the statute, such is but one factor to consider (Matter of Carvalho v State of New York, 176 AD2d 317 [2d Dept 1991]).

Claimant alleges that she fell on defectively maintained pavement on the walkway in front of the east wing building, that she was immediately taken for medical treatment, that she received further treatment on 20 separate dates, that the treatment she received was not adequate and that she filed two grievances complaining about the condition of the walkway and the alleged inadequacy of her treatment. None of these allegations have been disputed by defendant and the court thus accepts claimant’s allegations as true for the purpose of this motion (Cole v State of New York, (64 AD2d 1023 [4th Dept 1978]). [7] Defendant’s contention that “the State has been prejudiced by Movant’s failure to exhaust her administrative remedies” [8] is puzzling since no such administrative remedies are identified and the court is unaware of what defendant is referring to. The assertion that there is “no indication that a thorough investigation of the alleged incident took place” is similarly misplaced. The papers before the court demonstrate that defendant had timely notice of both aspects of the claim and had the opportunity to investigate. There is no requirement that claimant show that an actual investigation took place, and the affirmation of the assistant attorney general, who does not profess any knowledge of what investigation did or did not take place, is insufficient to rebut claimant’s allegations.

The apparent merit of claimant’s two causes of action must be considered separately. As to the claim of inadequate maintenance of the walkway, claimant’s undisputed allegations meet the minimal burden the statute imposes, particularly since they are undisputed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [1977]). [9] The Second Department has stated that “the denial of a motion to file a late claim may . . . constitute an improvident exercise of discretion where the delay is minimal, the State suffered no prejudice, and there may be issues of fact as to the merits of the claim (see Matter of Morales v State of New York, 292 AD2d 455, 456 [2002]; Marcus v State of New York, 172 AD2d 724, 725 [1991])”(Jomarron v State of New York, 23 AD3d 527, 528), language that describes the situation reflected in the papers before the court.

As to the medical malpractice cause of action, defendant is correct in asserting that in order to demonstrate apparent merit within the meaning of the statute, claimant would be required to present medical evidence from which the court could conclude, at least, that there are issues of fact as to whether claimant received adequate care (Schreck v State of New York, 81 AD2d 882 [2d Dept 1981]). The claim alleges inadequate medical care from January 23, 2007 through August 1, 2007. Had claimant’s motion been made within 90 days of the latter date, relief pursuant to §10(6) would not have been necessary and claimant would have been able to file her claim without demonstrating its apparent merit via medical proof (Robinson v State of New York (35 AD3d 948 [3d Dept 2006]). However, the motion is dated December 3, 2007 and was necessarily served more than 90 days after August 1, 2007. Since the only allegations before the court end on that date, claimant is not helped by the continuous treatment rule and relief pursuant to §10(6) is necessary. In the absence of medical proof, the court cannot find an appearance of merit to the claim of medical malpractice and it would not be proper to grant that aspect of the motion.

In accordance with the foregoing, claimant’s motion for permission to file a late claim is granted with respect to the cause of action alleging negligent maintenance of the walkway and denied with respect to the medical malpractice cause of action. Claimant may serve and file her claim, limited to the negligent maintenance cause of action, within 40 days of the filing date of this decision and order. Claimant must comply with all of the relevant provisions of the Court of Claims Act and the Uniform Rules for the Court of Claims, including as to manner of service and payment of the filing fee. Claimant is free to make a further application for permission to late file the medical malpractice claim, but such an application must be supported by competent medical proof, which will likely require an affidavit from a physician, from which the court can evaluate the merit of the allegations that the treatment rendered to claimant was improper or deficient.

March 19, 2008
White Plains, New York

Judge of the Court of Claims

[1].The court considered claimant’s Notice of Motion, Affidavit and Exhibit (M-74313) and defendant’s Affirmation in Opposition and Exhibits; claimant’s Notice of Motion, Affidavit and Exhibits (M-74314) and defendant’s Affirmation in Opposition and Exhibits, and the filed Claim and Answer.
[2].Affirmation in Opposition (M-74314), ¶ 14.
[3].In fact, § 11(b) was amended in August 2007 to delete the requirement that the “total sum claimed” be contained in personal injury and malpractice claims.
[4].At least in the absence of circumstances justifying the conclusion that claimant “reasonably assumed that [the provider] was either employed by or acting on behalf of the State” (Soltis v State of New York, 172 AD2d 919, 920 [3d Dept 1991]).
[5].Affirmation in Opposition (M-74314), ¶ 18.
[6].The court notes that the defense does not assert, like some of the other defenses, that “to the extent” the claim was served by regular mail, the court lacks jurisdiction.
[7].“Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true (Matter of Towns Paint Co. [Marine Trust Co. of Buffalo], 179 Misc 813; Carmody-Wait 2d, NY Civ Prac, § 8:58). The State cannot use its own silence as a shield against an allegation that it has notice of essential facts constituting a claim.” (64 AD2d 1023, 1024).
[8].Affirmation in Opposition (M-74313), ¶ 20.
[9].The claim is “not patently groundless, frivolous, or legally defective, and. . . there is reasonable cause to believe that a valid cause of action exists” (92 Misc 2d 1, 11).