Claimant's motion to dismiss eight affirmative defenses granted in part. Second Affirmative Defense asserted that claimant's activities bore certain risks, which did not pertain to this claim arising from allegedly inadequate medical treatment. Remainder of motion denied as no other affirmative defense was shown to lack merit as a matter of law and an answer's general denials of allegations in a claim are not subject to a motion to dismiss under CPLR 3211 (b).
|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: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 10, 2017|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim alleging that defendant's agents committed medical negligence and medical malpractice and were deliberately indifferent to claimant's medical needs in their treatment of claimant's wrist condition commencing in January 2009. Defendant's answer to the claim asserts eight affirmative defenses. Claimant moves for an order striking all eight affirmative defenses, as well as to strike certain denials contained in the answer. Defendant opposes the motion.
"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] [emphasis added]). "[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]).
As an initial matter, to the extent that claimant seeks to strike certain denials asserted in the answer (see Anekwe Affidavit, ¶¶ 4-6),(1) such relief will not be granted because a motion to dismiss affirmative defenses cannot be used to strike general denials of the allegations in the complaint or claim (see City of Rochester v Chiarella, 65 NY2d 92, 101 ); see CPLR 3211 [b]; CPLR 3018 [b]).
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 this defense is without merit as defendant is responsible for claimant's medical care and claimant's injuries and damages were "clearly" the result of defendant's negligence (Anekwe Affidavit, ¶ 7). Claimant offers no competent or 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 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, ¶ 6 [Second Affirmative Defense]). Claimant asserts that it is unclear to what the term "activities had certain risks incident thereto" refers (Anekwe Affidavit, ¶ 6). Defendant does not specifically address claimant's argument, and instead argues with regard to the entire motion that "[o]ther than claimant's bare assertions, there is no proof that the defenses asserted lack merit" (Strickland Smith Affirmation, ¶ 5).
The Court agrees with claimant that the defense lacks clarity, and it does not appear pertinent to this claim sounding in improper medical care. The affirmative defense, as drafted, is unclear whether it is asserting a defense based upon claimant's assumption of risk, and if it is, defendant has not demonstrated how such a defense would apply in light of the facts in this matter. Nor does the assertion that "claimant's activities had certain risks" (Verified Answer, ¶ 6 [Second Affirmative Defense][emphasis added]) appear to relate to an affirmative defense based upon claimant having given his informed consent for medical care. The possibility that the Second affirmative defense states a relevant defense to the claim has not been shown, and it will be stricken.
Third Affirmative Defense
The Third affirmative defense asserts that the Court lacks jurisdiction because the claim fails to state an accrual date as required by Court of Claims Act § 11. Claimant argues that the claim provides enough information to investigate as the claim alleges in paragraph 5 that "as early as on or about January 2009, and then subsequently in Exhibit -1, the 'Medical Excuse/Permit' forms submitted (provided in reverse chronological order), the last permit is dated 1/7/09, which notes that claimant was provided 'wrist brace,' which is referenced in claimants [sic] claim as the only medical treatment provided during the course of his injury" (Anekwe Affidavit, ¶ 9). Claimant further asserts that the exhibits appended to the claim are a part thereof and that the claim complies with Court of Claims Act § 11 (see id.).
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]). The statute's requirement that the claim state the "time when" the claim arose has been interpreted to be satisfied by a range of dates, but also to require a specific date, depending on the facts alleged in the claim. This claim alleges that defendant became aware of claimant's wrist condition in January 2009 and failed to treat the condition over subsequent unspecified dates (see Claim number 129363, ¶ 5), which may or may not satisfy the pleading requirements of Court of Claims Act § 11, and thus, the Third affirmative defense is not without merit as a matter of law and will not be dismissed.
Fourth Affirmative Defense
The Fourth affirmative defense asserts that the Court lacks jurisdiction over the claim due to claimant's failure to timely file the claim or serve a notice of intention to file a claim on the Attorney General. Defendant has withdrawn this defense (see Strickland Smith Affirmation, ¶ 3), rendering moot this branch of claimant's motion.
Fifth Affirmative Defense
The Fifth 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]).
Sixth Affirmative Defense
The Sixth affirmative defense asserts that the claim is covered by CPLR article 16 and General Obligations Law § 15-108. This defense seeks to limit defendant's liability in the event there are joint tortfeasors and where there are releases and covenants with other joint tortfeasors not to sue. Claimant argues that CPLR article 16 is inapplicable because defendant had the sole responsibility to provide his medical care and he had no agreement with defendant to relieve it of that responsibility. In addition, claimant asserts that he has not entered into any releases or covenants not to sue. Other than his unsworn assertions that defendant is the only party culpable for his alleged injuries, claimant offers no competent or persuasive proof that no other joint tortfeasor bears responsibility, or that defendant is not otherwise entitled to this defense. Further, and assuming that there is another joint tortfeasor, the fact that claimant has not yet executed a release and covenant not to sue a joint tortfeasor does not preclude him from doing so in the future.
Seventh Affirmative Defense
The Seventh affirmative defense asserts that the Court "lacks jurisdiction over the claim to the extent that it alleges violations of constitutional rights" (Verified Answer, ¶ 11 [Seventh Affirmative Defense]). Claimant argues that the defense is inapplicable because the claim does not assert any violations of constitutional rights. However, the claim alleges that defendant's agents acted with "deliberate indifference" to claimant's medical needs (Claim number 129363, ¶¶ 3,4,8), and a claim alleging "deliberate indifference" in the context of prison medical care may implicate the constitutional prohibition against cruel and unusual punishment. As the Court of Claims lacks jurisdiction over claims alleging violations of the federal constitution (see generally, Brown v State of New York, UID No. 2014-038-106 [Ct Cl, DeBow, J., July 31, 2014]), claimant has not established that this defense lacks merit as a matter of law.
Eighth Affirmative Defense
The Eighth affirmative defense asserts that any past or future expenses incurred by claimant that have been or will be replaced or indemnified in whole or part by a collateral source, "as defined in Section 4545 (c) [sic] of the Civil Practice Law and Rules" shall not be recoverable from defendant and that any recovery from defendant shall be diminished in the amount of any collateral source payment. Claimant argues that defendant cited the incorrect subdivision in CPLR 4545, and that he has no contracts or enforceable agreements with a collateral source and has not sought compensation from any other source. Notwithstanding that the affirmative defense cites the incorrect subdivision in CPLR 4545, it adequately puts claimant on notice that defendant will seek to offset claims paid to claimant from a collateral source. The fact that claimant has not yet entered into a contract or sought compensation from a collateral source does not preclude him from doing so in the future.
Accordingly, it is
ORDERED, the claimant's motion number M-90456 is GRANTED IN PART, to the extent that the Second Affirmative Defenses asserted in defendant's verified answer, filed March 31, 2017, is hereby DISMISSED; and it is further
ORDERED, the claimant's motion number M-90456 is DENIED in all other respects.
October 10, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 129363, filed February 28, 2017;
(2) Verified Answer, filed March 31, 2017;
(3) Notice of Motion, dated May 8, 2017;
(4) Affidavit of Peter Anekwe, dated May 8, 2017;
(5) Affirmation of Jeane L. Strickland Smith, AAG, dated July 3, 2017.
1. The Court notes that although claimant has submitted a document styled as an "affidavit" in support of his motion, it is not sworn and thus lacks evidentiary value.