Claimant's motion to strike 7 affirmative defenses granted in part. Those defenses that claimant showed to be lacking in merit without sufficient opposition from defendant are dismissed.
|Claimant short name:||CARTER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||DAVID CARTER, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 4, 2018|
|See also (multicaptioned case)|
Claimant, an individual formerly incarcerated in a State correctional facility, filed this claim seeking compensation for injuries sustained when he was allegedly assaulted at Green Haven Correctional Facility (CF). Claimant moves for an order striking all seven affirmative defenses that are asserted in defendant's answer. Defendant opposes the motion.
The claim alleges that claimant was assaulted in the A and B yard weight area at Green Haven (CF) on February 12, 2017 by another inmate who approached claimant from behind and cut claimant's face and neck. The claim alleges that there was no security at the A and B yard post, and that there were no metal detectors at the yard doors. The claim alleges that claimant was made to wait two hours in the facility infirmary before he was sent to an outside hospital. The claim asserts that defendant's agents were deliberately indifferent to his medical needs, and that they were negligent in failing to place metal detectors at the yard doors and in failing to have the yard posts staffed at the time of the assault.
"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]). "[A]n affirmative defense should not be dismissed if there is any doubt as to its availability" (Thy Tran v Avis Rent A Car, 289 AD2d 731, 732 [3d Dept 2001]; see Nahrebeski v Molnar, 286 AD2d 891 [4th Dept 2001]). "It is well settled that '[o]n a motion to dismiss a defense pursuant to CPLR 3211 (b), all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof' " (Capital Tel. Co. v Motorola Communications & Elecs., 208 AD2d 1150, 1150 [3d Dept 1994], quoting Grunder v Recckio, 138 AD2d 923 [4th Dept 1988]; see Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]). Importantly, the movant "[bears] the burden of demonstrating that those defenses [are] without merit as a matter of law" (Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept 2006]).
First Affirmative Defense
The First affirmative defense alleges that the injuries or damages sustained were caused in whole or part by the culpable conduct of the claimant or others. Claimant argues that he is not culpable because he did not assault himself, he was working when the assault happened and claimant was not aware of anyone wanting to assault him. Claimant contents that the only other culpable parties were the correction officers who were not present at their post and failed to use metal detectors. Defendant offers no specific argument regarding this or any other defense, arguing instead that "[o]ther than claimant's bare assertions, there is no proof that the defenses asserted lack merit" and that "there has been no discovery in this case in which to form a basis that the defenses lack merit" (Strickland Smith Affidavit, ¶ 5). Claimant's assertions that he was working and was not aware of anyone that wanted to assault him is not persuasive proof that defendant is the only culpable party or that he or some other party bears responsibility, or that defendant is otherwise not entitled to this defense. Thus, claimant has failed to establish that this defense lacks merit as a matter of law.
Second Affirmative Defense
The Second affirmative defense asserts that defendant's agents and employees "took actions which were privileged as being discretionary determination [sic] made by such agents or employees while acting within the scope of their duties as public officials, and therefore defendant is immune from liability" (Verified Answer, ¶ 8 [Second Affirmative Defense]). Claimant argues that "correction staff step [sic] outside of the scope of there [sic] duties by allowing claimant to be assaulted by not being posted around the yard where they should be or use of metal detectors so there was nothing privileged or discretionary about the actions of the defendants [sic]" (Carter Response, ¶ 5). Claimant offers no competent or persuasive proof that defendant's actions were not discretionary, or that the actions of defendant's agents are not entitled to immunity under this defense. Thus, claimant has failed to establish that this defense lacks merit as a matter of law.
Third Affirmative Defense
The Third affirmative defense alleges that claimant's "activities had certain risks incident thereto" that were obvious and well known, that claimant assumed those risks, and that claimant's damages arose or were caused by the assumed risks (Verified Answer, ¶ 9 [Third Affirmative Defense]). Claimant argues that he is unaware of any risks that he assumed, other than the risk of going to the yard. It is not clear that the doctrine of assumption of risk is pertinent to this claim and, as indicated above, defendant offers neither facts nor argument as to how the defense of assumption of risk would apply in light of the facts in this matter. Therefore, because there appear no facts to which the Third affirmative defense would be applicable, it will be stricken.
Fourth Affirmative Defense
The Fourth affirmative defense asserts that the claim fails to comply with Court of Claims Act § 11 in "failing to include an adequate description of the location of the incident alleged in the claim, in that the incident took place in the A and B yard weight area" and that the Court lacks jurisdiction (Verified Answer, ¶ 10 [Fourth Affirmative Defense]). The Court of Claims Act requires, among other things, that "[t]he claim shall 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 . . ." (Court of Claims Act § 11 [b] [emphasis added]). Claimant argues that the claim states the exact location of the assault, i.e. the A and B yard weight area, where inmates from A and B block go for recreation. On its face, the description of the location of the assault appears to be adequate, and as noted above, defendant has offered no facts or argument as to how the claim's description of the location of the incident is inadequate. Thus, the Fourth Affirmative Defense will be stricken.(1)
Fifth Affirmative Defense
The Fifth affirmative defense alleges that "[t]he claim is barred in whole or in part, by the regulations promulgated by the New York State Department of Corrections and Community Supervision Board of Parole" (Verified Answer, ¶ 11 [Fifth Affirmative Defense] [emphasis added]). Claimant argues that there is no regulation that bars claimant from filing this claim. Defendant has not specifically addressed claimant's argument or identified any regulation that would bar the claim, and the defense refers to a Board of Parole regulation, which would clearly be inapplicable to the facts as alleged in the claim. Thus, in the absence of any argument that the defense has merit, the defense will be stricken.
Sixth Affirmative Defense
The Sixth affirmative defense - that the claim fails to state a cause of action - "is harmless surplusage and a motion to strike it [pursuant to CPLR 3211(b)] should be denied as unnecessary" (Pump v Anchor Motor Frgt., 138 AD2d 849, 850 [3d Dept 1988]; see also Schmidt's Wholesale v Miller & Lehman Constr., 173 AD2d 1004, 1005 [3d Dept 1991]).
Seventh Affirmative Defense
The Seventh affirmative defense alleges that the "acts complained of are privileged in that they are activities mandated by statute which are judicial in nature and entitled to complete immunity. Arteaga v State of New York, 72 N.Y.2d 212" (Verified Answer, ¶ 13 [Seventh Affirmative Defense]). Claimant argues that the immunity afforded under Arteaga is inapplicable to the actions of corrections staff under this claim. Arteaga addressed the actions of correctional staff in the context of prison disciplinary matters, which "constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity" from unlawful confinement claims provided that defendant's agents comply with governing statutes and regulations (see Arteaga v State of New York, 72 NY2d 212, 214 ). The claim does not allege misconduct in the context of a prison disciplinary proceeding, nor does it assert any causes of action sounding in unlawful confinement, and defendant offers no facts or argument that would demonstrate that the defense has any merit. Thus, it will be stricken.
Accordingly it is
ORDERED, that claimant's motion number M-90586 is GRANTED IN PART, to the extent that the Third, Fourth, Fifth and Seventh Affirmative Defenses asserted in defendant's verified answer, filed May 30, 2017, are hereby DISMISSED; and it is further
ORDERED, the claimant's motion number M-90586 is DENIED in all other respects.
January 4, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 129630, filed April 26, 2017;
(2) Verified Answer, filed May 30, 2016;
(3) Notice of Motion, filed June 12, 2017;
(4) Response of David Carter to Defendant's Affirmative Defense [sic], verified June 6, 2017;
(5) Affirmation of Jeane L. Strickland Smith, AAG, dated August 30, 2017;
1. The Court's order granting claimant's motion to strike this defense should not be construed as an order precluding defendant from raising the defense that the claim failed to comply with other jurisdictional pleading requirements under Court of Claims Act § 11 (b).