Motion to strike affirmative defenses was granted in part and denied in part.
|Claimant short name:||HOLMAN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect that the sole properly named defendant is the State of New York.|
|Judge:||Alan C. Marin|
|Claimant's attorney:||David Holman, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Joseph F. Romani, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||June 10, 2009|
|See also (multicaptioned case)|
Claimant David Holman moves to strike defendant's first through sixth affirmative defenses. In his claim, Mr. Holman complains of medical treatment that he received while incarcerated at Sullivan Correctional Facility.
The State's affirmative defenses are not dispositive of a claim, and like the allegations in the claim itself, are merely assertions made by a party. Striking affirmative defenses is generally not warranted in the absence of a showing of prejudice by the claimant. See, e.g., 5 Weinstein-Korn-Miller, NY Civ Prac ¶3018.14 at 30-432. In this case, however, two of the State's affirmative defenses have jurisdictional implications and are thus appropriate to address: In its first and second affirmative defenses, the State alleges that claimant fails to comply with §11 of the Court of Claims Act (the "Act") by failing to adequately describe "the condition alleged in the claim as a cause of the incident" and "the State's conduct in regard to it."
Section 11.b of the Act requires that a medical malpractice claim state "the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained . . ." In Kolnacki v State of New York, 8 NY3d 277 (2007), the Court of Appeals held that the failure to state any of the foregoing items renders a claim jurisdictionally defective.
Via its aforementioned first and second affirmative defenses, the State presumably argues that Holman has failed to adequately set forth the nature of his claim. Claimant states, among other things, that a Sullivan Correctional Facility physician wrongly diagnosed a "right hydrocele, cyst or tumor" in his right testicle which led to unnecessary surgery.(2) In addition, various medical records are annexed to the claim. In view of the foregoing, I find that Holman has stated the nature of his claim with "sufficient definiteness." Heisler v State of New York, 78 AD2d 767, 433 NYS2d 646, 648 (4th Dept 1980). See, e.g., Acciarello v State of New York, Ct Cl, June 28, 2006 (unreported, claim no. 111038, motion nos. M-70958 and CM-71059, UID #2006-016-016, Marin, J.); Browne v State of New York, 16 Misc 3d 902, 839 NYS2d 907 (Ct Cl 2007).
Accordingly, having reviewed the submissions(3) , IT IS ORDERED that motion no. M-76572 be granted to the extent that the State's first and second affirmative defenses shall be deemed stricken, and such motion shall otherwise be denied.
June 10, 2009
New York, New York
Alan C. Marin
Judge of the Court of Claims
2. It should be noted that to the extent claimant alleges medical malpractice by Dr. Donald R. Krawitt, the State is not liable for treatment provided to an inmate by an outside physician or at an outside medical facility. See, e.g., Rivers v State of New York, 159 AD2d 788, 789, 552 NYS2d 189 (3d Dept 1990), lv denied, 76 NY2d 701, 557 NYS2d 878 (1990).
3. The following were reviewed: claimant's notice of motion with affidavit in support; and defendant's affirmation in opposition.