Claimant's motion to strike affirmative defenses and for late claim relief granted in part. Claimant demonstrated prima facie that the claim was timely served on the Attorney General and defendant did not refute that showing, and therefore the first and second affirmative defenses, which assert that the Court lacks jurisdiction over the claim due to untimely service on the Attorney General, are stricken from the verified answer. Claimant's application for late claim relief denied as unnecessary.
|Claimant short name:||GOMEZ|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK(1)|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||THEODORE M. HERLICH, ESQ.|
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||June 3, 2021|
|See also (multicaptioned case)|
This claim alleges that claimant, an individual currently incarcerated in a State correctional facility, was assaulted by several other inmates on a bus that was owned and operated by the Department of Corrections and Community Supervision (DOCCS) on December 28, 2020. Claimant now moves to strike the first and second affirmative defenses asserted in defendant's verified answer and for late claim relief. Defendant has not responded to the motion.
The claim alleges that at approximately 7:10 p.m. on December 28, 2020, claimant was on a DOCCS bus being transported from Upstate Correctional Facility (CF) to Downstate CF when he was assaulted by two other inmates (see Claim No. 136168, ¶¶ 9, 10 [f]). Specifically, the claim alleges that while the bus stopped at the New Baltimore service area on the New York State Thruway, where the inmates changed buses, claimant was seated on the bus with his hands and legs shackled, and was slashed with a sharp object by other inmates (see id. at ¶¶ 10 [a] - [f]). The claim alleges that no correction officers (COs) were present on the bus during the assault, but that after claimant was slashed, CO Belizario came onto the bus and stopped the assault, and that the bus continued on to Downstate CF, where claimant received medical care (see id. at ¶¶ 10 [f] - [h]). The claim alleges a cause of action sounding in negligent training and supervision based upon the failure of defendant's employees to protect claimant from the assault (see id. at ¶¶ 12, 14-17). Claimant now moves to dismiss the first and second affirmative defenses raised in defendant's verified answer, which assert that the Court lacks jurisdiction over the claim because it was untimely served.
The CPLR provides that "[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, 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] [internal quotation marks omitted]; see Suarez v State of New York, 60 AD3d 1243, 1243 [3d Dept 2009]). Importantly, claimant "[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]), and where the "claimant fail[s] to conclusively show that the defenses lack merit," the motion is properly denied (Suarez, 60 AD3d at 1243).
The first and second affirmative defenses assert that the Court lacks jurisdiction over the claim because it was untimely inasmuch as neither a claim nor a notice of intention to serve a claim was served within 90 days of the accrual of the claim as required by the Court of Claims Act (see Verified Answer, ¶¶ Sixth and Seventh). Claimant argues that these affirmative defenses must be dismissed because the claim was filed and served within 90 days of its December 28, 2020 accrual date as required by the Court of Claims Act. Specifically, claimant asserts that 90 days from the December 28, 2020 accrual date of this claim was March 28, 2021, which fell on a Sunday and was thus extended by operation of law to Monday, March 29, 2021 (see Herlich Affirmation, ¶ 19 and pg. 5; see also General Construction Law § 25-a ). The claim was electronically filed using the New York State Courts Electronic Filing (NYSCEF) system on March 26, 2021 (see Claim No. 136168, e-filed March 26, 2021), and claimant asserts that the claim was served on the Attorney General by certified mail, return receipt requested (CMRRR), on March 29, 2021 (see Herlich Affirmation, ¶ 17). Thus, claimant argues that the claim was timely served, and that the first and second affirmative defenses are lacking in merit and must be dismissed (see Herlich Affirmation, ¶¶ 17-18, pp. 5-6).
As an initial matter, the first and second affirmative defenses differ only in that the first affirmative defense cites to Court of Claims Act § 10 (3), which addresses claims sounding in negligence, and the second affirmative defense cites to Court of Claims Act § 10 (3-b), which addresses claims sounding in intentional tort (see Verified Answer, ¶¶ Sixth and Seventh). As noted above, the claim clearly sounds only in negligence, and thus the second affirmative defense clearly lacks merit and will be dismissed. With respect to the first affirmative defense, claimant correctly states that because the claim accrued on December 28, 2020, the day of the alleged assault, the 90-day period within which to file and serve the claim expired on March 28, 2021, which fell on a Sunday and was extended by operation of law to Monday, March 29, 2021. Inasmuch as claimant has demonstrated prima facie that he timely served the claim on the Attorney General on March 29, 2021 by CMRRR (see Herlich Affirmation, ¶ 17, Exhibit A [USPS Tracking Page, date stamped April 22, 2021]), and defendant has not responded to the motion and thus has not refuted that showing, the first affirmative defense lacks merit, and it will be dismissed.
That branch of claimant's motion seeking late claim relief will therefore be denied as unnecessary.
Accordingly, it is
ORDERED, that claimant's motion number M-96706 is GRANTED IN PART, to the extent that the First and Second affirmative defenses asserted in defendant's verified answer, filed April 19, 2021, are hereby DISMISSED; and it is further
ORDERED, that claimant's motion number M-96706 is DENIED in all other respects.
June 3, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 136168, filed March 26, 2021;
2. Verified Answer, filed April 19, 2021;
3. Notice of Motion, dated April 22, 2021;
4. Affirmation of Theodore M. Herlich, Esq., dated April 22, 2021, with Exhibit A;
5. "Affidavit" of Service via First Class Mail of Theodore M. Herlich, Esq., dated April 22, 2021;
6. Correspondence of Theodore M. Herlich, dated April 23, 2021.
1. The Court has amended the caption sua sponte to reflect the State of New York as the proper defendant.