Claimant's motion for appointment of counsel is denied; claimant's motion for partial summary judgment is denied; Defendant withdraws its third and fourth defenses and claimant's motion to strike defendant's affirmative defenses is otherwise denied; defendant's motion to dismiss the claim's causes of action for medical negligence and deliberate indifference accruing on dates and at locations not sufficiently identified in the notice of intention is granted; claimant's cross-motion for judgment declaring that the court has jurisdiction and for sanctions is denied; claimant's motion to compel answers to interrogatories is denied and defendant's cross-motion for a protective order vacating the interrogatories is granted.
|Claimant(s):||MARK ALAN LAPIERRE|
|Claimant short name:||LAPIERRE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-91023, M-90803, M-90642, M-91016, M-90641|
|Cross-motion number(s):||CM-90960, CM-91061|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||MARK ALAN LAPIERRE
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
By: Michael T. Krenrich, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 14, 2017|
|See also (multicaptioned case)|
Claimant moves for orders: Appointing Counsel (M-91023); granting partial summary judgment (M-90803); dismissing defendant's affirmative defenses (M-90642); imposing sanctions and granting partial summary judgment (CM-91061); and to compel answers to interrogatories (M-90641). Defendant opposes all of claimant's motions, with the exception of claimant's application for appointment of counsel.
Defendant moves to dismiss certain causes of action in the claim (M-91016) and for a protective order as to claimant's interrogatories (CM-90960). Claimant opposes the defendant's motions.
The claim alleges causes of action for assault by defendant's correction officers at Clinton Correctional Facility (Clinton) on December 21, 2012 and for medical negligence and deliberate indifference at Clinton, Downstate Correctional Facility and Marcy Correctional Facility between December 21, 2012 and September 16, 2013.
Claimant seeks assignment of counsel (M-91023), apparently pursuant to CPLR 1102 (a). However, the "application is defective inasmuch as the action has been commenced and no notice was given to the county attorney of the appropriate county as mandated" (Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]; CPLR 1101 [c]). The application has not been served, as required, on "the county attorney in the county in which the action is triable" (CPLR 1101 [c]).
Further, while it is "clear that private litigants have no absolute right to assigned counsel, it also recognized that courts have discretion to provide uncompensated representation for indigent civil litigants in a proper case" (Wills v City of Troy, 258 AD2d 849 [3d Dept 1999]; see CPLR 1102 [a]). A proper case may include proceedings where "there is the danger of grievous forfeiture or the deprivation of a fundamental liberty right" (Morgenthau v Garcia, 148 Misc 2d 900, 903 [Sup Ct, NY County 1990]).
In a civil action "there is no absolute right to assigned counsel; whether in a particular case counsel shall be assigned lies instead in the discretion of the court" Matter of Smiley, 36 NY2d 433, 438 ; Planck v County of Schenectady, 51 AD3d 1283 [3d Dept 2008]).
This is not a proper case for appointment of counsel since claimant seeks money damages for personal injuries allegedly caused by an assault by defendant's employees. Such cases, if they appear meritorious, are typically handled by private attorneys, without cost to the litigant, on a contingent fee basis.
Claimant has not shown a "danger of grievous forfeiture or the deprivation of a fundamental liberty right" (148 Misc 2d at 903). Claimant's motion for an order assigning counsel to represent him without payment of any fee in this action (M-91023) is denied.
Claimant moves for partial summary judgment (M-90803) as to the alleged facts that claimant "prior to December 21, 2012, the Claimant had no significant medical injuries and was medically approved for placement in the Court-Ordered Lakeview SHOCK Program" and that "on or after December 21, 2012, the Claimant sustained a broken rib . . . and [defendant] is unable to provide an excuse to how this injury occurred."
Claimant's motion for partial summary judgment is denied. CPLR 3212 (b) requires that claimant provide a "copy of the pleadings" in support of the motion. Claimant's notice of motion does not include a copy of the pleadings and a motion for summary judgment is "properly denied in its entirety on that ground alone" (Senor v State of New York, 23 AD3d 851, 852 [3d Dept 2005]; see Bonded Concrete v Town of Saugerties, 3 AD3d 729, 730 [3d Dept 2004], lv dismissed 2 NY3d 793 ).
In addition, the claimant's motion papers set forth no basis for the Court to order judgment against the defendant. The purpose of a summary judgment motion is to "show that there is no defense to the cause of action or that the cause of action or defense has no merit" (CPLR 3212 [b]). The relief sought by claimant is more akin to the type of relief provided for in a notice to admit undisputed matters of fact pursuant to CPLR 3123 (a).
Claimant also asks the Court to dismiss defendant's affirmative defenses (M-90642). Defendant has withdrawn its third and fourth defenses (these two challenged defenses essentially maintain that defendant's alleged actions were legally privileged or immune from liability) in response to the claimant's motion.
The Court notes that claimant has not provided a copy of the defendant's answer containing the defenses claimant seeks to strike.
CPLR 3211 (b) provides as follows: "A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit."
Greco v Christoffersen (70 AD3d 769, 771 [2d Dept 2010]), explains that:
"[W]hen moving to dismiss or strike an affirmative defense, the [claimant] bears the burden of demonstrating that the affirmative defense is 'without merit as a matter of law' (Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept 2006]). In reviewing a motion to dismiss an affirmative defense, [the] Court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference."
The defendant's sixth defense maintains, in essence, that the claim's medical negligence and deliberate indifference causes of action are untimely because they were not alleged in the claimant's notice of intention to file a claim but were, instead, only alleged in the claim which was served more than ninety days after the subject causes of action accrued. The Court finds that claimant has failed to offer admissible alleged facts showing that the defendant's sixth defense is "without merit as a matter of law" (Vita, 34 AD3d at 559).
The law requires that the allegations contained in the challenged defenses "must be accepted as true on a motion to strike" and where the "claimant failed to conclusively show that the defenses lacked merit" the motion is properly denied (Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]).
Claimant's attempt to shift the burden of proof to defendant to prove its defenses in response to claimant's motion, is unavailing. Further, claimant's unsworn and conclusory statement supporting his motion fails to offer any admissible alleged facts showing that the defendant's first (comparative negligence), second (third-party negligence) and fifth (failure to state a cause of action) defenses are "without merit as a matter of law" (Vita, 34 AD3d at 559).
Claimant's motion to strike the defenses in defendant's answer (M-90642) is denied, though the Court notes, as set forth above, that the defendant has withdrawn its third and fourth defenses.
Defendant moves to dismiss the claim's causes of action for medical negligence and deliberate indifference accruing at Downstate Correctional Facility and Marcy Correctional Facility as untimely (M-91016) because the time to interpose those causes of action was not extended by the claimant's timely service of a notice of intention to file a claim. Claimant cross-moves for "partial summary judgment of jurisdiction" and for sanctions (CM-91061).
Court of Claims Act section 10 requires that a claim to recover damages for personal injuries caused by the tortious conduct of an employee of the state, whether the defendant's conduct was intentional or unintentional, be served upon the attorney general within ninety days after the accrual of the claim, "unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such [unintentional tort] claim" (Court of Claims 10 ) or "within one year after the accrual of such [intentional tort] claim" (Court of Claims 10 [3-b]).
The claim was served on December 18, 2013, more than ninety days after September 16, 2013, the last date set forth in the claim with respect to medical negligence and deliberate indifference allegations accruing at Downstate Correctional Facility and Marcy Correctional Facility.
The defendant acknowledges that the claimant served a notice of intention to file a claim on March 6, 2013 which provided defendant "prompt notice" of causes of action for assault, medical negligence and deliberate indifference, all accruing at Clinton from December 21-28, 2012. The defendant argues, however, that the notice of intention to file a claim did not provide sufficient notice of the claim's medical negligence and deliberate indifference causes of action accruing at Downstate Correctional Facility and Marcy Correctional Facility between December 29, 2012 and September 16, 2013, as required by Court of Claims Act 11 (b):
"The claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed. A claim for the appropriation by the state of lands, or any right, title or interest in or to lands shall include an inventory or itemized statement of fixtures, if any, for which compensation is claimed. The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated."
A claim against the State is permissible only as a result of the State's waiver of sovereign immunity and the statutory requirements conditioning suit must therefore be strictly construed (Kolnacki v State of New York 8 NY3d 277, 280 ). The Kolnacki court noted that the requirements of section 11 (b) are "substantive conditions upon the State's waiver of sovereign immunity" (quoting Lepkowski v State of New York, 1 NY3d 201, 207 ) and that the failure to satisfy any of the conditions is a jurisdictional defect (Kolnacki, 8 NY3d at 280-281). The Kolnacki decision stresses that "nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary" (Kolnacki, 8 NY3d at 281).
The standard of review in assessing whether a claim or notice of intention to file a claim complies with section 11 (b) is well-settled:
"What is required is not absolute exactness, but simply a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State. In short, substantial compliance with section 11 is what is required . . . . Conclusory or general allegations of negligence that fail to adduce the manner in which the claimant was injured and how the State was negligent do not meet its requirements" (Heisler v State of State of New York, 78 AD2d 767, 768 [4th Dept 1980]; see Cendales v State of New York, 2 AD3d 1165, 1167 [3d Dept 2003]; Sega v State of New York, 246 AD2d 753, 755 [3d Dept 1998], lv denied 92 NY2d 805 ).
Here, the notice of intention to file a claim did not allege any negligent acts or omissions occurring at either Downstate Correctional Facility or Marcy Correctional Facility so as to enable the defendant to investigate its liability under the circumstances. Claimant's assertion that the "continuous treatment" doctrine tolled the ninety day service period is without basis because the claim alleges a lack of treatment rather than negligent continuous treatment.
Goldsmith v Howmedica, Inc. (67 NY2d 120, 122 ), recites the minimal requirements of the continuous treatment doctrine:
"[I]n a case where the doctor continues to treat the plaintiff after the act of malpractice, the Statute of Limitations is tolled until after the plaintiff's last treatment for the same injury or illness."
The defendant's motion to dismiss the claim's causes of action for medical negligence and deliberate indifference accruing at Downstate Correctional Facility and Marcy Correctional Facility (M-91016) is granted, because the time to interpose those causes of action in the claim was not extended by the claimant's service of a notice of intention to file a claim.
Claimant's cross-motion for "partial summary judgment of jurisdiction and imposition of sanctions" (CM-91061) is denied because no legal or factual basis for the relief requested is established in claimant's supporting papers.
Claimant moves for an order compelling answers to interrogatories (M-90641). Defendant cross-moves for an order of protection (CM-90960) because the interrogatories are "overbroad, irrelevant, unduly burdensome and palpably improper."
The claimant has failed to attach a copy of the claim and a copy of the interrogatories for which he seeks answers and claimant's motion is denied on this procedural infirmity alone.
With respect to the defendant's cross-motion for an order of protection (CM-90960), the claim essentially alleges a cause of action for assault upon claimant by correction officers on December 21, 2012. According to defendant, claimant has served twenty-six (26) sets of interrogatories (containing 1464 questions) setting forth hundreds of often irrelevant questions addressed to multiple individuals, many of whom have no connection to the specific allegations of the claim.
Protective orders are governed by CPLR 3103 which provides at relevant part as follows:
"(a) Prevention of abuse. The court may at any time on its own initiative, or on motion of any party or of any person from whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.
Claimant alleges that he was assaulted by correction officers without justification, not an uncommon claim in a correctional facility setting. The issues set forth in the claim do not justify the now twenty-six sets of interrogatories (addressed to multiple persons) propounded. Viewed in its entirety, especially given the straightforward nature of the claim, claimant's use of this discovery method is abusive. Under such circumstances, rather than prune the numerous palpably improper questions, the Court is justified in vacating the interrogatories in their entirety (Village of Mamaroneck v State of New York, 16 AD3d 674, 675 [2d Dept 2005]).
Defendant's motion for a protective order (CM-90960) is granted and the challenged interrogatories are accordingly vacated.
November 14, 2017
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Notice of Motion for Appointment of Counsel (M-91023), filed September 11, 2017;
2. Affidavit of Mark A. LaPierre, sworn to September 1, 2017, and attached exhibits;
3. Claimant's Notice of Motion for Partial Summary Judgment (M-90803), filed July 24, 2017;
4. "Affidavit" of Mark A. LaPierre, dated July 15, 2017, and attached exhibits;
5. Affirmation in Opposition of Michael T. Krenrich, dated August 21, 2017, and attached exhibit;
6. Claimant's "Notice of Motion/Request to Amend," filed September 5, 2017;
7. "Affirmation" of Mark A. LaPierre, dated August 28, 2017;
8. Notice of Motion to Dismiss Affirmative Defenses (M-90642), filed June 16, 2017;
9. "Affirmation" of Mark A. LaPierre, dated June 7, 2017;
10. Affirmation in Opposition to Motion to Strike of Michael T. Krenrich, dated August 21, 2017, and attached exhibits;
11. Claimant's "Affirmation in Reply," dated August 28, 2017;
12. Defendant's Notice of Motion to Dismiss (M-91016), filed September 1, 2017;
13. Affirmation of Michael T. Krenrich, dated August 31, 2017, and attached exhibits;
14. Claimant's "Notice of Cross-Motion For Partial Summary Judgment of Jurisdiction," (CM-91061) filed September 15, 2017;
15. Affidavit of Mark A. LaPierre, sworn to September 7, 2017, and attached exhibits;
16. Affirmation in Opposition of Michael T. Krenrich, dated September 26, 2017;
17. Claimant's Notice of Motion to Compel Discovery and Compel Interrogatories (M-90641), filed June 16, 2017;
18. Affirmation of Mark A. LaPierre, dated June 7, 2017;
19. Defendant's Notice of Cross-Motion for Protective Order (CM-90960), filed August 22, 2017;
20. Affirmation of Michael T. Krenrich, dated August 22, 2017, and attached exhibits;
21. Claimant's "Affirmation in Reply," dated August 24, 2017.