New York State Court of Claims

New York State Court of Claims

LOBDELL v. STATE OF NEW YORK, #2009-018-026, Claim No. 115968, Motion No. M-76202


Synopsis


Claimant’s motion to strike Defendant’s answer and affirmative defense is denied.

Case Information

UID:
2009-018-026
Claimant(s):
KEVIN LOBDELL
1 1.The Court has amended the caption sua sponte to reflect the State of New York as the only proper Defendant.
Claimant short name:
LOBDELL
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The Court has amended the caption sua sponte to reflect the State of New York as the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115968
Motion number(s):
M-76202
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
KEVIN LOBDELL, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 14, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant brings this motion pro se seeking to strike Defendant’s answer to his claim and


Defendant’s Affirmative Defense and for summary judgment. Defendant opposes the motion.

The claim seeks damages for the injuries Claimant suffered as a result of the State’s allegedly improper medical care and treatment of his knee. The answer asserts some general denials to the substantive allegations followed by one affirmative defense. The first affirmative defense asserts a lack of personal and subject matter jurisdiction for failure to timely serve a notice of intention or claim within 90 days after accrual of the cause of action in accordance with Court of Claims Act §§ 10 and 11.

By this motion, Claimant alleges that the answer should be stricken because the claim is true and he suffers from constant pain as a result of the negligence of the Defendant. He also states that he timely served his claim.

The claim was filed on October 17, 2008. Claimant alleges a series of accrual dates in the claim ranging from September 2007 through November 29, 2008. Defendant, in response to this motion, argues that some of the supportive documents attached to the claim reflect that Claimant’s continuing care for his knee relating to his original complaints and treatment ended on June 28, 2008, as the follow-up to the knee surgery he had on June 11, 2008. There was a subsequent visit to the infirmary on July 29, 2008, and a referral recommendation made for an orthopedics consultation on August 20, 2008.[2] The information provided with the claim, however, does not conclusively establish that the claim is timely commenced. Where a defense is sufficient on its face and raises issues of fact, a motion to strike should be denied (149 Clinton Ave. N., Inc. v Grassi, 51 AD2d 502; Levine v Levy, 285 App Div 848).

As for Claimant’s request to strike the entire answer, there is no motion to dismiss or strike mere denials contained in the answer authorized by the CPLR (see Siegal, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3018:4; CPLR C3211:38). Furthermore, the Claimant has not established that Defendant’s denials are without merit (see Siegal, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3018:2; C3018:4; CPLR C3211:38). The issues that Claimant raises must be determined at a trial of this matter. As many questions of fact exist, the Court also cannot grant Claimant judgment on the claim.

Accordingly based upon the foregoing, Claimant’s motion is DENIED.



May 14, 2009
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


Papers Considered:

  1. Notice of Motion
  1. Affidavit of Kevin Lobdell, in support, sworn to January 13, 2009.
  1. Affirmation of G. Lawrence Dillon, Esquire, Assistant Attorney General, in opposition, together with exhibits attached thereto.

[2].The date on the consultation referral is difficult to read, it is either August 20 or August 22, 2008.