Opinion
# 2018-038-586 Claim No. 128128 Motion No. M-92750
10-25-2018
WILLIAM J. COKE 02B1082 v. THE STATE OF NEW YORK
WILLIAM J. COKE, Pro se BARBARA D. UNDERWOOD, Attorney General of the State of New York By: Jeane L. Strickland Smith, Assistant Attorney General
Synopsis
Claimant's motion for dismissal of affirmative defenses and/or summary judgment denied for failure to demonstrate entitlement to relief sought.
Case information
| UID: | 2018-038-586 |
| Claimant(s): | WILLIAM J. COKE 02B1082 |
| Claimant short name: | COKE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128128 |
| Motion number(s): | M-92750 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | WILLIAM J. COKE, Pro se |
| Defendant's attorney: | BARBARA D. UNDERWOOD, Attorney General of the State of New York By: Jeane L. Strickland Smith, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 25 ,2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, has filed this claim in which he seeks money damages for personal injuries allegedly sustained as a result of improper prescribing of medications and the failure to diagnose a spinal condition. Defendant has joined issue with a verified answer that includes eleven affirmative defenses. Claimant moves "to dismiss defendant's claim of an Affirmative Defense and asserted Immunity clause and grant the requested amount" of damages (Notice of Motion). The motion was assigned an initial return date of September 19, 2018, which was adjourned to October 3, 2018 upon the request of the Assistant Attorney General, who has nevertheless failed to submit any response to the motion. Notwithstanding defendant's default, however, the motion will be denied for claimant's failure to demonstrate that he is entitled to the relief he seeks.
To the extent that claimant seeks dismissal of one or more affirmative defenses pursuant to CPLR 3211 (b), that rule 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]). The movant who seeks dismissal of defenses "[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]).
Here, claimant's affidavit in support of his motion asserts facts about his current medical condition, emotional health, and physical sequelae of defendant's alleged negligence, and although he makes reference to certain affirmative defenses (see Claimant's Affidavit, at p.10), he does not effectively address any of the eleven enumerated affirmative defenses that are set forth in defendant's verified answer. Thus, he has failed to demonstrate that any of the defenses are lacking merit as a matter of law.
To the extent that claimant seeks summary judgment pursuant to CPLR 3212, it is well established that a movant for summary judgment bears the initial burden of establishing his right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). It is well established that summary judgment is a drastic remedy which is to be granted only where the moving party has 'tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact' (Alvarez v Prospect Hosp., 68 NY2d at 324 [1986]). When a movant fails in the first instance to demonstrate its entitlement to summary judgment as a matter of law, its motion must be denied (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993], quoting Alvarez v Prospect Hosp., at 324).
Again, claimant's affidavit speaks only to his injury and condition following defendant's alleged negligent acts, and although his claim is supported by exhibits mainly in the nature of medical records, he has failed to offer proof in admissible form that demonstrates that defendant breached any duty of care or that it did not conform to applicable standards of medical care. In particular, the absence of an affidavit or affirmation of an expert in support of the motion that sets forth the appropriate standard of care, and avers that the standard of care was breached and that the breach was a proximate cause of claimant's injuries is fatal to this motion for summary judgment on a claim that alleges negligence in regard to medical care (see McCain v State of New York, UID No. 2014-049-035 [Ct Cl, Weinstein, J., June 10, 2014]; Malik v State of New York, UID No. 2007-038-529 [Ct Cl, DeBow, J., Apr. 18, 2007]). Thus, claimant has not met his prima facie burden of demonstrating his entitlement to judgment as a matter of law, and summary judgment cannot be granted.
Accordingly, it is
ORDERED, that motion number M-92750 is DENIED.
October 25 ,2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Claim number 128128, filed June 27, 2016, with Exhibits 1-11; (2) Verified Answer, dated July 26, 2016; (3) Response to Answer, sworn to August 1, 2016; (4) Notice of Motion to Dismiss Affirmative Defense, undated and filed August 23, 2018; (5) Affidavit in Support of Motion to Dismiss Affirmative Defense, sworn to August 9, 2016; (6) Correspondence of Jeane Strickland Smith, AAG, dated September 14, 2018.