Opinion
# 2017-038-524 Claim No. 125515 Motion No. M-89454
03-24-2017
JOHN WHITE v. THE STATE OF NEW YORK
JOHN WHITE, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Thomas R. Monjeau, Assistant Attorney General
Synopsis
Claimant's motion to dismiss affirmative defenses based on untimely filing and service of the claim granted. Claimant demonstrated timely filing and service, which defendant did not challenge in opposition to the motion. Defendant's assertion that this motion, addressed purely to the pleadings, was premature because discovery had yet to be conducted, is irrelevant to the motion.
Case information
| UID: | 2017-038-524 |
| Claimant(s): | JOHN WHITE |
| Claimant short name: | WHITE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125515 |
| Motion number(s): | M-89454 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | JOHN WHITE, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Thomas R. Monjeau, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 24, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, filed this claim alleging that employees at Upstate Correctional Facility (CF) committed various tortious acts against him in December 2014. Claimant moves to dismiss three affirmative defenses asserted in the answer; defendant opposes the motion.
The claim was filed on January 12, 2015 and it asserts two causes of action. The first cause of action alleges that it accrued on December 10, 2014 when Correction Officer (CO) Velie slammed claimant's arm and wrist into a cell door slot, causing injuries. This cause of action also alleges that claimant was subsequently denied medical care immediately after the incident, that Upstate CF officials were negligent in responding to his subsequent medical complaints about the injuries, and that Department of Corrections and Community Supervision (DOCCS) directives were violated. The second cause of action alleges that it accrued on December 26, 2014 when CO Chase used excessive force during an escort that resulted in claimant's head and chest area being shoved into a wall or door, causing injuries. This cause of action also alleges that claimant was subsequently denied medical care and that DOCCS directives were violated. Defendant's answer dated February 6, 2015 and filed on February 10, 2015, asserts nine affirmative defenses, including that the claim was untimely inasmuch as it was neither filed nor served within ninety days of its accrual (Verified Answer, Second through Fourth Affirmative Defenses). Claimant's motion seeks dismissal of these three affirmative defenses.
CPLR 3211 (b) 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." "[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 [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], quoting Grunder v Recckio, 138 AD2d 923 [4th Dept 1988]; see Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]). Importantly, the movant "[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]).
The Second affirmative defense asserts that the Court lacks subject matter jurisdiction over the claim because it was not filed with the Clerk of the Court of Claims within ninety days of accrual as required by Court of Claims Act §§ 10 (3-b) and 11 (a) (Verified Answer, Second Affirmative Defense, ¶ FIFTH). The Third and Fourth affirmative defenses assert that the Court lacks subject matter jurisdiction over the claim and personal jurisdiction over defendant because it was not served within ninety days of accrual as required by Court of Claims Act §§ 10 (3), 10 (3-b) and 11 (id., Third Affirmative Defense, ¶ SIXTH; Fourth Affirmative Defense, ¶ SEVENTH). In his sworn submission, claimant argues that accrual dates of his causes of action are December 10, 2014 and December 26, 2014, and that the claim was timely filed on January 12, 2015 and was timely served inasmuch as defendant's answer was dated February 6, 2015, all of which occurred fewer than 90 days after the accrual dates in the claim, and that the claim is therefore timely. Defendant opposes the motion, arguing that the motion is premature because no discovery has been done, that claimant has submitted no proof in support of his motion and has thus failed to sustain his burden of proof, and that defendant would suffer prejudice and that it would be inappropriate to strike the affirmative defenses.
Claimant's motion will be granted. The claim that was filed with the Clerk of the Court is stamped with a filing date of January 12, 2015, so it was timely filed for any cause of action that accrued on or after October 14, 2014. Although there is no evidence in the record as to when the claim was received by the Attorney General, defendant's verified answer is dated February 6, 2015, meaning that the claim was received no later than that date, so at a very minimum the claim was timely served for any cause of action that accrued on or after November 8, 2014. Inasmuch as the claim alleges that its causes of actions accrued after October 14 and November 8, 2014, and defendant has not argued that any of the causes of action in the claim accrued prior to those dates, claimant has proven that the claim was timely filed and served. Accordingly, even giving defendant the benefit of all reasonable inferences from the proof submitted, claimant's motion to dismiss the Second, Third and Fourth affirmative defenses will be granted as the defense is without merit (see CPLR 3211[b]).
Defendant's reliance on two Court of Claims decisions, Young v State of New York (UID No. 2009-040-013 [Ct Cl, McCarthy, J., Jan. 22, 2009]) and DeLeon v State of New York (UID No. 2011-029-048 [Ct Cl, Mignano, J., Oct. 20, 2011]), for the proposition that claimant has failed to prove that the affirmative defenses lack merit as a matter of law does not compel a different result. In both of those decisions the claimants failed to offer proof that the affirmative defenses lacked merit as a matter of law, as contrasted with claimant's motion, which is supported by a sworn submission as to the accrual, filing and service dates, all of which are confirmed by the pleadings in the Court's file. Furthermore, defendant's position that discovery is needed prior to the dismissal of these defenses plainly lacks merit inasmuch the focus on this motion to dismiss is the pleadings and not the evidence that will be adduced during discovery and at trial. Indeed, if defendant's position were correct, then defendant would not be permitted to bring pre-answer motions to dismiss due to the failure to timely file and serve a claim (cf. Green v State of New York, UID No. 2009-038-527 [Ct Cl, DeBow, J., Mar. 19, 2009]). If claimant attempts in the prosecution of this claim to seek recovery on causes of action that accrued more than ninety days before the filing and service of the claim, defendant may make an appropriate motion or motions to dismiss those causes of action at that time.
Accordingly, it is
ORDERED, that claimant's motion number M-89454 is GRANTED and the Second, Third and Fourth Affirmative Defenses asserted in defendant's verified answer, filed February 10, 2015, are hereby DISMISSED.
March 24, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 125515, filed January 12, 2015; (2) Verified Answer, filed February 10, 2015; (3) Notice of Motion to Strike Defenses, dated October 12, 2016; (4) Affidavit and Memorandum of Law of John White in Support of Motion to Strike Defenses, sworn to October 12, 2016; (5) Affirmation of Thomas R. Monjeau, AAG, in Opposition, dated November 21, 2016.