Opinion
# 2016-041-040 Claim No. 127275 Motion No. M-88433
06-23-2016
MICHAEL PLATT v. THE STATE OF NEW YORK
MICHAEL PLATT Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Belinda A. Wagner, Esq. Assistant Attorney General
Synopsis
Claimant's motion to dismiss defenses is denied where claimant fails to show that the defenses lack merit as a matter of law.
Case information
| UID: | 2016-041-040 |
| Claimant(s): | MICHAEL PLATT |
| Claimant short name: | PLATT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127275 |
| Motion number(s): | M-88433 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | MICHAEL PLATT Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Belinda A. Wagner, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 23, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for an order dismissing defendant's affirmative defenses. Defendant opposes the claimant's motion except as to its fourth affirmative defense which alleges that the claim fails to state a cause of action. Defendant has withdrawn its fourth affirmative defense.
The claim was served on January 4, 2016 and seeks recovery for medical malpractice allegedly committed while claimant was incarcerated and under defendant's custody, care and control.
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 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]).
Defendant's first defense sets forth a jurisdictional defense based upon the alleged untimeliness of the claim. While claimant asserts that he will rely upon the "continuous treatment" doctrine to attempt to avoid the first defense, the record is patently insufficient to demonstrate that the defendant's first defense lacks merit as a matter of law.
Defendant's second and third 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.
Disclosure proceedings have not yet begun, much less completed, and evidence could conceivably exist which would tend to prove that claimant contributed to the severity of his injuries and damages. 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]).
In sum, claimant's conclusory affidavit supporting his motion fails to set forth any admissible alleged facts showing that any of defendant's three remaining 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 is denied, except that the defendant's fourth affirmative defense, alleging that the claim fails to state a cause of action, is stricken based upon defendant's consent to that portion of the requested relief.
June 23, 2016
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion to Dismiss Defenses, filed April 21, 2016; 2. Affidavit of Michael Platt, sworn to April 15, 2016, and attached exhibits; 3. Affirmation of Belinda A. Wagner, dated May 4, 2016, and attached exhibit.