Opinion
# 2015-016-021 Claim No. 125159 Motion No. M-86214
04-27-2015
RALPH OYAGUE v. THE STATE OF NEW YORK
Ralph Oyague, Pro Se Eric T. Schneiderman, Attorney General By: Douglas H. Squire, AAG
Synopsis
Case information
| UID: | 2015-016-021 |
| Claimant(s): | RALPH OYAGUE |
| Claimant short name: | OYAGUE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125159 |
| Motion number(s): | M-86214 |
| Cross-motion number(s): | |
| Judge: | Alan C. Marin |
| Claimant's attorney: | Ralph Oyague, Pro Se |
| Defendant's attorney: | Eric T. Schneiderman, Attorney General By: Douglas H. Squire, AAG |
| Third-party defendant's attorney: | |
| Signature date: | April 27, 2015 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This is the decision on claimant Ralph Oyague's motion to strike "any and all" of the affirmative defenses that the State of New York interposed against his claim for injury to his left knee. Mr. Oyague's underlying claim contends that because of "misdiagnosis, deliberate indifference and surgical omissions" with respect to his right knee, he ended up favoring his left leg.
The State's Verified Answer contains 11 affirmative defenses. The Answer includes timeliness defenses based on both the 90-day period in the Court of Claims Act (the "Act") and the statute of limitations, presumably the CPLR article 2 period, which would block a late claim under the Act (the First, Third and Fourth defenses). Claimant, who had surgery on his left knee on August 6, 2013, is critical of defendant's use of May 18, 2009 as the accrual date.
There are two defenses based on the State's view that the claim lacks sufficient specificity (the Fifth and Sixth defenses). The State also asserts collateral estoppel or res judicata and to the extent that the claim is based on lack of informed consent, that it is insulated by subdivision 4 of Public Health Law section 2805-d, which sets forth a number of defenses thereto (the Tenth and Eleventh defenses).
A party moving to strike one or more affirmative defenses bears the burden of proving "that a defense is not stated or is without merit as matter of law . . . [the defendant] is 'entitled to the benefit of every reasonable intendment of its pleading, which is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed [citations omitted]' " (South Point, Inc. v Redman, 94 AD3d 1086, 1087 [2d Dept 2012]). It has been observed that striking affirmative defenses is generally not warranted in the absence of a showing of prejudice (Weinstein-Korn-Miller, NY Civ Prac ?? 3018.14 [2d ed 2005]).
Moreover, defenses relating to timeliness and specificity are jurisdictional in the Court of Claims, and if at issue, should be dealt with more directly. See for example, Byrne v State of New York, 104 AD2d 782 (2d Dept 1984), lv denied 64 NY2d 607 (1985) and Lepkowski v State of New York, 1 NY3d 201 (2003).
In view of the foregoing, and having reviewed the parties' submissions, IT IS ORDERED that motion No. M-86214 to strike defendant's affirmative defenses be denied.
The following were reviewed: claimant's Affirmation to Strike Verified Answer (with exhibits A through E); and defendant's Affirmation in Opposition to Claimant's Motion to Strike Verified Answer (with exhibits A through E).
April 27, 2015
New York, New York
Alan C. Marin
Judge of the Court of Claims