New York State Court of Claims

New York State Court of Claims
GARCIA v. THE STATE OF NEW YORK, # 2021-038-537, Claim No. 134559, Motion No. M-96556

Synopsis

Claimant's motion to strike twelve of thirteen affirmative defenses raised in verified answer granted in part. Claimant demonstrated that the second, sixth, seventh, eighth, tenth, eleventh, twelfth affirmative defenses, and affirmative defense 9-B were without merit as a matter of law.

Case information

UID: 2021-038-537
Claimant(s): DERRICK GARCIA
Claimant short name: GARCIA
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 134559
Motion number(s): M-96556
Cross-motion number(s):
Judge: W. BROOKS DeBOW
Claimant's attorney: DERRICK GARCIA, Pro se
Defendant's attorney: LETITIA JAMES, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
Third-party defendant's attorney:
Signature date: June 28, 2021
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, an individual currently incarcerated in a State correctional facility, filed this claim alleging dental negligence at Green Haven Correctional Facility (CF) between 2014 and 2019. Claimant now moves to strike twelve of the thirteen affirmative defenses raised in defendant's verified answer.(1) Defendant opposes the motion.(2)

The claim alleges that defendant's employees at Green Haven CF "negligently refused to treat [c]laimant's ongoing dental issues, while maliciously threatening [c]laimant to remove other teeth that were good (to receive much needed dentures, etc.) and questionably delaying all treatment(s) stemming from 12/16/14 through 2019," and that "possibly . . . foreign" particles or fragments were left "within [his] gums" (Claim No. 134559, 2). The claim alleges that as a result of the failure to properly treat claimant's dental issues, he experienced problems with his stomach and digestion because he is not able to chew properly, weight loss, and pain (see id.). Claimant now moves to strike twelve of the thirteen affirmative defenses asserted in defendant's verified answer, arguing that they are "either meritless or misplaced, and have no bearing in any of the irrefutable facts and circumstances leading to this action" (Garcia Motion to Strike, 2).(3)

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).

First Affirmative Defense

The first affirmative defense alleges that "[t]he claim fails to state a cause of action against the defendant" (Verified Answer, 4). Claimant argues that because he is in the custody of the State, he is "entitled to a degree of treatment and care when it comes to [his] health and well-being," and that the Court should find that he has stated a viable claim based upon "any one of" the causes of action asserted in his claim because defendant "employ[s] its medical/dental staff in each of its statewide facilities" (Motion to Strike, 6). Defendant argues in opposition that this branch of claimant's motion must be denied as unnecessary because the affirmative defense of failure to state a cause of action is harmless surplusage (see Rubinstein Affirmation, 6). Claimant argues in reply that the first affirmative defense "is without merit as a matter of law" because "[t]he very nature of a medical/dental negligence suit is cognizable in countless courtrooms" (Garcia Reply Affidavit, 3). As defendant correctly argues in opposition (see Rubinstein Affirmation, 6), it is well settled that this defense 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]). Thus, claimant's motion to strike with respect to the first affirmative defense will be denied.

Second Affirmative Defense

The second affirmative defense alleges that the Court lacks jurisdiction over the claim because the notice of intention did not "state the specific time when and date of the accrual of the cause of action" as required by Court of Claims Act 11 (b), and was thus insufficient to extend claimant's time to file and serve the claim (Verified Answer, 5). Claimant argues that this affirmative defense is "unavailing" because the claim invokes the continuous treatment doctrine, and the notice of intention was timely served on defendant and included "all . . . pertinent information" required by Court of Claims Action 11 (Motion to Strike, 7). Defendant argues that this defense is "clearly warrant[ed]" given "[t]he lack of information contained in the Notice of Intention" and should not be stricken in light of the "strict jurisdictional requirements of the Court of Claims Act" (Rubinstein Affirmation, 7). Claimant does not address the second affirmative defense in his reply affidavit.

Claimant has appended to his motion a copy of the notice of intention that he served on the Attorney General, in which he alleges that the "date of the initial incident was: December 16, 2014" and that "[t]he date of accrual is: January 11, 2019" (Motion to Strike, Exhibit 3 [Notice of Intention, 4-5]). Because the notice of intention clearly alleged "the time when . . . [the] claim arose" as required by Court of Claims Act 11 (b), claimant's motion will be granted with respect to the second affirmative defense.

Third Affirmative Defense

The third affirmative defense alleges that defendant is entitled to governmental immunity for the discretionary actions of its employees (see Verified Answer 6). Claimant argues that the State may be "held liable for negligence of prison doctors" because it "has a duty to protect and preserve the health of inmates" (Motion to Strike, 8 [internal quotation marks omitted]). Claimant further argues that the "Court can readily determine that [he is] owed 'special duty' " and that "it was arbitrary and capricious to 'exercise . . . discretion' to keep . . . [c]laimant in such state for years" (id.). Defendant argues in opposition that because the State is immune from liability for discretionary governmental actions, "[d]iscretionary acts may not be the basis of State liability" (Rubinstein Affirmation, 10). Claimant argues in reply that the third affirmative defense must be dismissed because the State has the "absolute duty as for the care, custody, and control of each individual housed under their authority," particularly where, as here, claimant was unable to obtain his own doctors and medical treatment, and that discretionary actions do not include mistreatment, malpractice, or negligence (Garcia Reply, 6).

To the extent that the claim alleges dental malpractice, the provision of dental care, which is akin to the provision of medical care, is a proprietary function and thus is not subject to governmental immunity (see Schrempf v State of New York, 66 NY2d 289, 294 [1985]; Rattray v State of New York, 223 AD2d 356, 357 [1st Dept 1996]). However, to the extent that the claim can be read as alleging that defendant's agents were negligent in the performance of a governmental function in refusing to treat claimant's dental issues, claimant has offered no competent or persuasive proof that the actions of defendant's employees at Green Haven CF were not discretionary and thus not entitled to immunity under this defense. Therefore, claimant has failed to establish that this defense lacks merit as a matter of law, and that part of claimant's motion to strike this defense will be denied.

Fourth Affirmative Defense

The fourth affirmative defense alleges that any damages or injuries claimant sustained "are attributable, in whole or in part, to the comparative negligence or culpable conduct of . . . claimant" and that any damages claimant recovers should be diminished proportionally with his comparative negligence or culpable conduct (Verified Answer, 7). Claimant argues that this affirmative defense must be dismissed because he "can not manufacture dentures, nor can [he] intelligently make an informed medical opinion about the condition of [his] teeth, and [he] can not extract such," and thus the affirmative defense of comparative negligence "can be only a boilerplate response to [the] Verified Claim" (Motion to Strike, 9). Defendant argues that the motion to strike must be denied as to the fourth affirmative defense because the documentary evidence submitted by claimant reveals "that claimant's refusal of care may have contributed to his damages and injuries" (Rubinstein Affirmation, 11). In reply, claimant again argues that this affirmative defense must be dismissed because claimant did not perform any dentistry on himself, and he further argues that it was defendant's "sole responsibility . . . to insure that he receive[d his dentures] years ago" and that "[n]one of the dilatory or painful actions (or lack thereof)" can be attributed to him (Garcia Reply, 7). Other than claimant's assertions in that he cannot be culpable because he lacks knowledge and skill in the field of dentistry, claimant has offered no competent or persuasive proof that he does not bear responsibility for his losses, and in fact, as defendant correctly observes, the documentation submitted in support of the claim reveals that defendant refused treatment on several occasions, including a refusal to accept dentures on July 3, 2015 (see Claim No. 134559, attachments [Memorandum, dated February 26, 2019; Invoice No. 0384607; Dental Treatment Record, unnumbered pp. 3-4; Refusal of Medical Examination and/or Treatment, dated May 21, 2012; Refusal of Medical Examination and/or Treatment, dated September 29, 2014]). Accordingly, claimant has failed to establish that this defense lacks merit as a matter of law, and that part of claimant's motion seeking to strike this defense will be denied.

Sixth through Twelfth Affirmative Defenses

Claimant argues that the Sixth through Twelfth affirmative defenses "are identical to [the Second] Affirmative Defense and are grossly lacking in merit" and must be dismissed because his notice of intention, which is appended to his motion papers as Exhibit 3, includes all of the information required under Court of Claims Act 11, including "[w]hen the incident originated," "[w]here the incident(s) happened (with the 'particular location in facility')," and "[a] brief description of the leading incident/nature of [his] claims" (id. at 10).(4)

The sixth and seventh affirmative defenses allege that the Court lacks jurisdiction over the claim because the notice of intention failed to comply with Court of Claims Act 11 (b) and thus was insufficient to extend claimant's time to file and serve the claim inasmuch as it did not include "an adequate description of the condition alleged in the claim as the cause of the incident" (Verified Claim, 9) or "any particularization of the nature of the cause of action and . . . defendant's conduct in regard to it" (id. at 10 [Seventh Affirmative Defense]). Defendant argues that these affirmative defenses should not be stricken because the notice of intention did not allege "what actions defendant did or did not allegedly participate in that would suggest liability on behalf of defendant" and thus failed to comply with the strict jurisdictional requirements set forth in Court of Claims Act 11 (b) (Rubinstein Affirmation, 7). In reply, claimant argues that these affirmative defenses should be dismissed because the notice of intention "set[] forth all information required by the Court of Claims Act(s) 10 & 11, to the letter," that a notice of intention need not "outline Claimant's entire case and/or allegations," but simply provide defendant with "ample notice of the substance of a[] pending claim along with the particulars thereof," and that the notice of intention here fulfilled those requirements (Garcia Reply, 4).

Court of Claims Act 11 (b) requires, as relevant here, that the notice of intention and the claim shall state the time when and place where such claim arose" and "the nature of same," and that the claim shall set forth "the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for . . . dental . . . malpractice . . . , the total sum claimed." A notice of intention that does not set forth sufficient information to satisfy Court of Claims Act 11 (b) fails to extend beyond 90 days the time within which to file and serve the claim (see Langner v State of New York, 65 AD3d 780, 782 [3d Dept 2009]), and when the notice of intention is deficient, the related claim that is filed and served more than 90 days after accrual of the claim is properly dismissed for lack of jurisdiction (see Prisco v State of New York, 62 AD3d 978, 979 [2d Dept 2009], lv denied 13 NY3d 706 [2009]). Although "the State is not required to go beyond the . . . notice of intention in order to investigate an occurrence, or ferret out information which should be provided under section 11 (b)" (Wilson v State of New York, 35 Misc 3d 227, 230 [Ct Cl 2011]), "[a] notice of intention . . . does not serve the same purpose as the claim itself, and for that reason need not meet the more stringent [Court of Claims Act 11 (b) pleading] requirements imposed upon [a claim]," and "[i]t is enough if the notice of intention relates the general nature of the claim - a cause of action need not be stated - and provides sufficient detail to enable the State to investigate" (Epps v State of New York, 199 AD2d 914, 914 [3d Dept 1993] [internal quotation marks omitted]).

In the notice of intention that was served on the Attorney General, claimant alleged "[t]he nature of my claim is as follows: My medical need for treatment is an ongoing serious condition that Green Haven Dental department refuse [sic] to promptly, and properly provide reasonable care and treatment for" (Motion to Strike, Exhibit 3 [Notice of Intention, 6]). The notice of intention further alleged that "[t]he date of the initial incident was: December 16, 2014," and "[t]he date of accrual is: January 11, 2019" (id. at 4-5). In the Court's view, although the allegations in the notice of intention are sparse, it sufficiently, clearly, and adequately alleges that defendant's agents and employees at Green Haven CF failed to provide claimant with proper and timely dental care between December 2014 and January 2019. Therefore, the notice of intention - which need not be as detailed as the claim itself - sufficiently conveyed the general nature of the claim and allowed the State to investigate the allegations. Accordingly, claimant's motion to strike the sixth and seventh affirmative defenses will be granted.

The eighth affirmative defense alleges that the Court lacks jurisdiction over the claim because it fails to comply with Court of Claims Act 11 inasmuch as it "alleges causes of action[] not set forth in the notice of intention" (Verified Claim, 11). As with the sixth and seventh affirmative defenses, defendant argues that the eighth affirmative defense is "clearly warrant[ed]" because the notice of intention fails to allege "what actions defendant did or did not allegedly participate in that would suggest liability on behalf of defendant" (Rubinstein Affirmation, 7). Defendant further argues that while the claim "asserts dental negligence rather than dental malpractice," the notice of intention "does not . . . assert either negligence or malpractice," and that the continuous treatment doctrine does not apply in the absence of an allegation of medical malpractice or a course of treatment between 2014 and 2019 (Rubinstein Affirmation, 8). In reply, claimant applies to the eighth affirmative defense the same argument raised in support of his motion to strike the sixth and seventh affirmative defenses, and argues that the continuous treatment doctrine applies to this claim because it contemplates treatment, or lack thereof, that took place between December 2014 and January 2019 (see Garcia Reply, 5).

Claimant has submitted in support of the instant motion copies of the claim and notice of intention which, as noted above, need not state a cause of action but must simply provide sufficient detail regarding the general nature of the claim to permit the State to investigate. In the Court's view, the allegations in the notice of intention that defendant's agents in the "Dental department" at Green Haven CF failed to "promptly, and properly provide reasonable care and treatment for" his "ongoing serious condition" sufficiently put defendant on notice of the claim, regardless of whether it sounded in medical malpractice or negligence, and the motion to strike will be granted with respect to the eighth affirmative defense.

Affirmative defense 9-A alleges that the Court lacks subject matter jurisdiction over the claim because it was untimely inasmuch as neither a valid notice of intention nor the claim was served within 90 days of its accrual as required by the Court of Claims Act (see Verified Answer, 12). Affirmative defense 9-B and the tenth, eleventh, and twelfth affirmative defenses assert that the Court lacks subject matter jurisdiction over the claim because it does not comply with Court of Claims Act 11 inasmuch as it fails "to include the items of damage or injury claimed" (Verified Answer, 13), "to state the specific time when and date of the accrual of the cause of action" (id. at 14), "to include an adequate description of the condition alleged in the claim as a cause of the incident" (id. at 15), or "to include adequate particularization of the nature of the cause of action and . . . defendant's conduct in regard to it" (id. at 16).

Defendant argues that these affirmative defenses are not duplicative but rather "all address claimant's failure to timely serve a sufficiently pled claim" (Rubinstein Affirmation, 13). Defendant argues that the claim contains conclusory allegations that fail to allege any specific wrongdoing by defendant's employees during the five-year period indicated in the claim and relies on supporting documentation to supply the relevant dates and locations (see id.). Defendant further argues that it "rightfully included affirmative defenses related to improper filing/service based upon timeliness" due to the "lack of clear inclusion of dates of accrual within the [c]laim" (id.), and that claimant cannot rely upon the continuous treatment doctrine because he has not demonstrated that the doctrine applies to this claim (see id. at 14). Claimant argues in reply that these affirmative defenses "are quite duplicative and seem to be grasping for straws" because the documentary evidence "provide[s] a timeline for the events concerning this claim" (Garcia Reply, 9), and there is clearly no issue as to timeliness inasmuch as the continuous treatment doctrine applies (see id. at 10).

Notwithstanding that defendant's submissions demonstrate that the notice of intention was served on the Attorney General on March 18, 2019, within 90 days of the January 11, 2019 accrual date alleged therein, as defendant correctly argues, claimant has offered no proof in connection with this motion that the continuous treatment doctrine applies here (see Johanson v Sullivan, 68 AD3d 1303, 1304 [3d Dept 2009] [continuous treatment doctrine tolls the statute of limitations "until the end of a course of treatment when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint"]). In the absence of any competent or persuasive proof that the continuous treatment doctrine applies, claimant has not demonstrated that affirmative defense 9-A patently lacks merit, and the motion to strike will be denied as to affirmative defense 9-A.

With respect to affirmative defense 9-B and the tenth through twelfth affirmative defenses, however, Court of Claims Act 11 (b) requires, as pertinent here, 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 and, except in an action to recover damages for . . . dental . . . malpractice . . . , the total sum claimed." The failure to set forth sufficient facts to satisfy each of the pleading requirements set forth in Court of Claims Act 11 (b) is a fatal defect in subject matter jurisdiction that requires dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007], rearg denied 8 NY3d 994 [2007]; Lepkowski v State of New York, 1 NY3d 201, 209 [2003]). Substantial compliance with this pleading requirement is sufficient (see Wharton v City Univ. of N.Y., 287 AD2d 559, 559-560 [2d Dept 2001]), and "absolute exactness is not required, [but] the claim must provide a sufficiently detailed description of the particulars of the claim . . . [and] defendant is not required to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotation marks and citations omitted]).

The Court agrees with claimant that the claim sufficiently alleges that it arose at the Green Haven CF "Clinic/Dental Department" between December 2014 and 2019, that it is based upon the negligent refusal of defendant's agents and employees to treat claimant's dental issues, threatening to improperly remove healthy teeth, and delaying his dental treatment, and that as a result, claimant has suffered from problems with his stomach and digestion, the inability to chew properly, weight loss, pain, and some unidentified material left in his gums (see Motion to Strike, Exhibit 1 [Claim No. 134559]). In the Court's view, those allegations as set forth in the claim are sufficiently detailed to allow defendant to investigate and defend the claim, and claimant's motion to strike will be granted with respect to these four affirmative defenses.

Accordingly, it is

ORDERED, that claimant's motion number M-96556 is GRANTED IN PART, to the extent that the second, sixth, seventh, eighth, tenth, eleventh, twelfth affirmative defenses and affirmative defense 9-B asserted in defendant's verified answer, filed August 24, 2020, are hereby DISMISSED; and it is further

ORDERED, that claimant's motion number M-96556 is DENIED in all other respects.

June 28, 2021

Saratoga Springs, New York

W. BROOKS DeBOW

Judge of the Court of Claims

Papers considered:

1. Claim No. 134559, filed March 3, 2020;

2. Verified Answer, filed August 24, 2020;

3. Notice of Motion, dated February 22, 2021;

4. Motion to Strike Defendants Affirmative Defense(s) as Meritless or Misplaced, Etc., sworn to February 22, 2021, with Exhibits 1-3;

5. Affirmation of Heather R. Rubinstein, AAG, in Opposition to Claimant's Motion to Strike Defenses, dated May 13, 2021, with Exhibits A-C;

6. Reply of Derrick Garcia to Defendant's Affirmation in Opposition to Claimant's Motion to Strike Defenses, sworn to June 15, 2021.


1. Defendant's verified answer contains two affirmative defenses denominated the "Ninth Defense" (see Verified Answer, 12-13), and although the affirmative defenses are numbered "First" through "Twelfth," the verified answer contains thirteen affirmative defenses in total. For clarity's sake the two affirmative defenses denominated "Ninth Defense" will be referred to as affirmative defenses 9-A and 9-B, sequentially.

2. Although claimant submitted an untimely reply affidavit that was sworn to on June 15, 2021 and filed with the Court on June 21, 2021, well after the June 2, 2021 return date of this motion, in the interest of justice, the Court will exercise its discretion and consider claimant's reply affidavit in support of the motion.

3. Although claimant's motion to strike does not address the fifth affirmative defense raised in the verified answer, which asserts that claimant's injuries or damages were caused by a third party for whom the State is not responsible (see Verified Answer, 8), claimant argues in his reply affidavit that the "fifth affirmative defense [is] moot on its face" because the individual medical providers responsible for the alleged dental malpractice and/or negligence were DOCCS employees and not outside providers, which defendant would have known had it investigated the claim (Garcia Reply, 8). However, because claimant did not seek to dismiss the fifth affirmative defense in his original moving papers but rather raised that issue for the first time in reply, that argument is not properly before the Court, and the fifth affirmative defense will not be stricken (see N.A.S. Partnership v Kligerman, 271 AD2d 922, 923 [3d Dept 2000] ["reply papers are intended to address contentions raised in opposition to the motion and not to introduce new arguments in support of the motion"]; Potter v Blue Shield of Northeastern N.Y., 216 AD2d 773, 775 [3d Dept 1995] [trial court did not err in declining to consider argument that "was improperly raised for the first time in defendant's reply affidavit"]).

4. Although claimant addresses this argument to the sixth through twelfth affirmative defenses, it is not applicable to the eighth affirmative defense, which asserts that the Court lacks jurisdiction over the claim because it contains causes of action not alleged in the notice of intention, or to affirmative defense 9-A, which asserts that the claim is untimely because neither the claim nor a notice of intention was served on the Attorney General within 90 days of the claim's accrual.