Opinion
# 2011-041-032 Claim No. 119602 Motion # 2011-041-032 Claim No. M-80206 # 2011-041-032 Claim No. M-80207
09-15-2011
NELSON v. THE STATE OF NEW YORK
Synopsis
Claimant's motion to dismiss defenses is denied; claimant's motion requesting a preliminary telephone conference is denied with leave to renew upon claimant's release from incarceration. Case information
UID: 2011-041-032 Claimant(s): SEAN C. NELSON, 08-B-0690 Claimant short name: NELSON Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119602 Motion number(s): M-80206, M-80207 Cross-motion number(s): Judge: FRANK P. MILANO SEAN C. NELSON Claimant's attorney: Pro Se Defendant's attorney: None Third-party defendant's attorney: Signature date: September 15, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, an inmate at Clinton Correctional Facility (Clinton) at the time the motions were filed, moves for the scheduling of a preliminary conference and to dismiss the affirmative defenses set forth in defendant's answer.
After submission of the motions, claimant advised the Clerk of the Court of Claims that he expected to be released from incarceration on September 6, 2011. Claimant's motion requesting a preliminary conference is denied with leave to renew upon claimant's release from incarceration, and upon claimant providing to the Clerk of the Court of Claims his new address and telephone number (22 NYCRR 206.6 [f]).
Defendant has not submitted opposition to the motion to dismiss its affirmative defenses. The Court notes that claimant has filed an affidavit of service of the motion papers on the Attorney General.
Claimant alleges that, beginning on August 19, 2010, defendant provided inadequate follow-up medical care at Clinton after claimant underwent shoulder surgery at Bare Hill Correctional Facility.
Claimant moves to dismiss all of the defendant's affirmative defenses, pursuant to CPLR 3211 (b), which 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 law requires that the allegations contained in the challenged affirmative 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]).
Defendant's first and second defenses allege, respectively, that the claimant's injuries or damages were contributed to by claimant's own culpable conduct or by the culpable conduct of others for whom defendant has no legal responsibility. Claimant's motion to dismiss these defenses is denied.
The motion is unsupported by a copy of the pleadings and is not supported by any medical records or expert medical proof. Further, it is unclear whether disclosure proceedings have begun, much less been completed, and evidence could conceivably exist which would tend to prove that claimant contributed to the severity of his injuries and damages. Significantly, claimant alleges that he suffered an aggravation of the injury to his shoulder after falling "in the yard" at Clinton.
Similarly, it cannot be determined, at this stage of the action, whether an independent medical provider, or other tortfeasor, for whom defendant has no legal responsibility, may have contributed to claimant's injuries and damages (see Werner v Central General Radiologists, 130 AD2d 574 [2d Dept 1987]).
The defendant's third defense (failure to state a cause of action) is not the proper subject of a CPLR 3211 (b) motion to strike a defense (Dubois v Vanderwalker, 245 AD2d 758, 760 [3d Dept 1997]). The claimant's motion is denied with respect to the third defense.
The claimant's motion requesting that a preliminary conference be scheduled is denied with leave to renew. Claimant's motion to strike the defenses in defendant's answer is denied.
September 15, 2011
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion for Preliminary Conference, filed July 12, 2011;
2. Affidavit of Sean C. Nelson, sworn to July 5, 2011;
3. Claimant's Notice of Motion to Dismiss Defenses, filed July 12, 2011;
4. Affidavit of Sean C. Nelson, sworn to July 5, 2011;
5. Letter of Sean Nelson, dated July 26, 2011.