Opinion
# 2021-040-002 Claim No. 134785 Motion No. M-95920
02-02-2021
In the Matter of the Claim of: LAMAR PRATER, DIN No. 18-A-4463 v. STATE OF NEW YORK
Lamar Prater, Pro Se LETITIA JAMES Attorney General of the State of New York By: Thomas J. Reilly, Esq., AAG
Synopsis
Pro se Claimant's Motion to dismiss affirmative defenses raised in Defendant's Answer denied in part and granted in part.
Case information
| UID: | 2021-040-002 |
| Claimant(s): | In the Matter of the Claim of: LAMAR PRATER, DIN No. 18-A-4463 |
| Claimant short name: | PRATER |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 134785 |
| Motion number(s): | M-95920 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Lamar Prater, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Thomas J. Reilly, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | February 2, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the Motion of Claimant, Lamar Prater, appearing pro se, to dismiss the defenses asserted in the State's Answer is denied in part and granted as to the tenth affirmative defense.
This pro se Claim, which was filed in the office of the Clerk of the Court on May 26, 2020, alleges that, in 2017, prior to his incarceration, Claimant had surgery to remove hemorrhoids. In January 2019, he was incarcerated in a State correctional facility. Claimant asserts that he went to numerous sick call appointments, and was seen by facility nurses, who failed or refused to examine Claimant. He also asserts that facility doctors refused to treat profuse bleeding, resulting in pain, suffering, and an inability to perform normal daily activities. Claimant alleges that his civil rights were violated and that he did not receive adequate and necessary medical care (Claim, ¶¶ 3, 4).
The State's Answer to the Claim, which was filed in the office of the Clerk of the Court on August 25, 2020, denies knowledge of information sufficient to form a belief as to the allegations contained in paragraphs 1 and 5 of the Claim, and denies the allegations contained in paragraphs 2, 3, and 4 of the Claim. The State also asserts 11 affirmative defenses in its Answer.
CPLR 3018 relates to responsive pleadings. Subdivision (a) refers to denials and states that "[a] party shall deny those statements known or believed by him to be untrue. He shall specify those statements as to the truth of which he lacks knowledge or information sufficient to form a belief and this shall have the effect of a denial."
According to Professor Patrick M. Connors, when an allegation is denied, the allegation must be proved by the party pleading it (see Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3018:2, at 299). The burden, thus, is upon Claimant to establish the allegations that were denied in the State's Answer.
A motion to dismiss defenses may be made 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 [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 and Elecs., 208 AD2d 1150, 1150 [3d Dept 1994], quoting Grunder v Recckio, 138 AD2d 923, 923 [4th Dept 1988]; see Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]). Moreover, the movant "[bears] the burden of demonstrating that those defenses [are] without merit as a matter of law" (Vita v New York Waste Services, LLC, 34 AD3d 559, 559 [2d Dept 2006]; see Suarez v State of New York, 14 Misc 3d 1230[A] [Ct Cl 2006], affd 60 AD3d 1243, supra).
In his affirmation, submitted in opposition to Claimant's Motion, defense counsel asserts that the only affidavit Claimant signed is his affidavit of service. The Court notes that Claimant's supporting affidavit is neither signed nor notarized. However, Defendant has not submitted any argument that the Court is precluded from considering an unsworn, unsigned statement from Claimant. Defendant also asserts that the motion should be denied because Claimant failed to submit any pleadings with his motion. Defendant cites four cases in support of this proposition. The Court has reviewed three of the cases citedand finds that they all relate to summary judgment motions made pursuant to CPLR 3212 and not motions to strike, pursuant to CPLR 3211(b). Thus, the Court rejects Defendant's argument that the Motion must be denied on its face.
Defendant also cites a case decided by Judge Martin of this Court, however, the case is unreported and Defendant did not provide a copy of the Decision with it papers. Thus, the Court did not review it.
The State's first affirmative defense asserts that the Court lacks subject matter jurisdiction over the cause of action alleging civil rights violations. If proved, this defense would result in the civil rights cause of action being dismissed. Accordingly, this defense must stand pending a determination of the issue.
The State's second defense asserts that the State is entitled to immunity on the basis that the State's acts or omissions complained of in the Claim were undertaken as part of its governmental function, that Defendant owed no special duty to Claimant, and/or Defendant's alleged acts or omissions were the result of an exercise of discretion. If proved, this defense would result in the Claim's dismissal. Accordingly, this defense must stand pending a factual determination of the issue.
The State's third defense asserts that the actions of Defendant's employees are privileged as being discretionary determinations made within the scope of the employees' duties and, therefore, Defendant is immune from any liability for such actions. Again, if proved, this defense would result in the Claim's dismissal. Accordingly, this defense must stand pending a factual determination of the issue.
The State's fourth defense asserts that the State's employees were governmental employees performing discretionary functions, whose conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would or should have known, and that, by reason thereof, Defendant is entitled to qualified immunity from liability in this matter. This defense is similar to the third defense, and , again, if proved, this defense would result in the Claim's dismissal. Accordingly, this defense must stand pending a factual determination of the issue.
The State's fifth defense asserts that Claimant's damages were caused by his own culpable conduct. If proved, Claimant's culpable conduct would negate or, at least, limit Defendant's liability. Accordingly, this defense must stand pending a factual determination of the issue.
The State's sixth defense asserts that the Claim fails to state a cause of action against Defendant upon which relief may be granted. If proved, this defense would result in the Claim's dismissal. Accordingly, this defense must stand pending a determination of the issue.
The State's seventh defense asserts that, upon information and belief, any economic loss incurred by Claimant that has been or will be replaced or indemnified, in whole or in part, by a collateral source, as specified in CPLR § 4545, shall not be recoverable from Defendant, and that any recovery from Defendant shall be diminished in the amount of any collateral source payment. If proved, this defense would negate or, at least, limit Defendant's liability. Accordingly, this defense must stand pending a factual determination of the issue.
The State's eighth defense asserts that Claimant failed to mitigate or diminish the injuries, damages, and disabilities alleged in the Claim. Again, if proved, this defense would negate or, at least, limit Defendant's liability. Accordingly, this defense must stand pending a factual determination of the issue.
The State's ninth defense asserts that Claimant's injuries were the result of an independent, intervening and superseding cause over which Defendant had no control and did not participate. Again, if proved, this defense would negate or, at least, limit Defendant's liability. Accordingly, this defense must stand pending a factual determination of the issue.
The State's tenth defense asserts that the risk alleged in the Claim, not to have been disclosed, is too commonly known to warrant disclosure. Having read the Claim, and recited the facts alleged in the Claim above, the Court concludes that the Claim does not assert that a risk was not disclosed. Therefore, this Defense lacks merit and is dismissed.
The State's eleventh defense asserts that the malpractice cause of action lacks merit. At trial, it will be Claimant's burden to establish merit. This is determined by applying the law to the facts established at trial. Again, if proved, this defense would negate or, at least, limit Defendant's liability. Accordingly, this defense must stand pending a factual determination of the issue.
Therefore, as set forth above, Claimant's Motion to dismiss the first through ninth and eleventh affirmative defenses asserted in the Answer is denied. The Motion to strike the tenth defense is granted.
February 2, 2021
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Claimant's Motion to dismiss the defenses in Defendant's Answer: Papers Numbered Notice of Motion, unsigned "Statement," and Affidavit of Service Attached 1 Affirmation in Opposition 2 Filed Papers: Claim, Answer