Claimant's motion to strike affirmative defenses denied without prejudice. Claimant filed amended claim after motion was made, defendant's submission in opposition addressed only the initial claim, not the amended claim.
|Claimant short name:||ANEKWE|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||PETER ANEKWE, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Elizabeth A. Gavin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 13, 2017|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim on December 27, 2016 in which he alleges that defendant's agents were negligent in their treatment of claimant's shoulder condition from March 2012 through July 29, 2016. Defendant filed an answer to the claim on January 17, 2017, containing six affirmative defenses. On February 14, 2017, claimant filed the instant motion seeking an order striking five of the six affirmative defenses asserted in defendant's answer, which was made returnable on April 5, 2017. Prior to the return date of the motion, on March 9, 2017, claimant filed an amended claim that differed from the initial claim in several significant ways, including the addition of factual allegations and a cause of action sounding in medical malpractice. In a letter to claimant, a copy of which was sent to the Attorney General's office, the Chief Clerk of the Court of Claims advised that the amended claim had been given the original claim number 128992, "subject to whatever legal objections may apply thereto" (Fazzone Correspondence, dated March 20, 2017). On March 31, 2017, the return date of the pending motion was adjourned at the request of Assistant Attorney General (AAG) Gavin to May 17, 2017. By correspondence dated May 10, 2017, AAG Gavin requested guidance from the Court on how to proceed on the motion given that the amended claim was untimely filed and was not served on defendant and, according to AAG Gavin, "should be returned to the Claimant as an improper filing" (Gavin Correspondence, dated May 10, 2017). AAG Gavin was advised that "[i]t is not the prerogative of the Clerk's office to reject a filed document for the reasons you put forth" and the return date of the motion was adjourned to June 21, 2017 (Correspondence of Nancy Schulman, Principal Law Clerk, dated May 11, 2017). Defendant subsequently submitted opposition to the motion to strike the affirmative defenses that were stated in its answer to the original claim, which submission does not address the amended claim.
Inasmuch as amended claim number 128992 has been filed, and bears indicia that it has been served on defendant (Affidavit of Service, sworn to March 7, 2017), claimant's motion that is addressed to the answer to the initial claim will be denied, without prejudice. The filed amended claim, not the initial pleading, is the claim that is now pending subject to whatever legal objections may apply. Inasmuch as an amended pleading supercedes the pleading that it amends see Plaza PH2001 LLC v Plaza Residential Owner LP, 98 AD3d 89, 99 [1st Dept 2012], claimant's motion that is addressed to affirmative defenses in the answer to the initial claim is not properly before the Court at this time. Accordingly, it is
ORDERED, that claimant's motion number M-89940 is DENIED, without prejudice.
September 13, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 128992, filed December 27, 2016;
(2) Verified Answer, filed January 17, 2017;
(3) Affidavit of Service of Amended Pleading of Peter Anekwe, sworn to March 7, 2017;
(4) Amended Pleading, Claim number 128992, filed March 9, 2017, with Exhibit 1;
(5) Notice of Motion, dated February 9, 2017 and filed February 14, 2017;
(6) Affidavit of Peter Anekwe in Support, dated February 9, 2017, with Exhibit A;
(7) Correspondence of Elizabeth A. Gavin, AAG, dated March 31, 2017;
(8) Correspondence of Gina M. Hadcock, Secretary to Judge DeBow, dated March 31, 2017;
(9) Correspondence of Elizabeth A. Gavin, AAG, dated May 10, 2017, with Exhibit 1;
(10) Correspondence of Nancy Schulman, Principal Law Clerk, dated May 11, 2017;
(11) Affirmation in Opposition to Claimant's Motion to Strike Defenses of
Elizabeth A. Gavin, AAG, dated June 21, 2017, with Exhibits A-C.