Suarez v State of New York

[*1] Suarez v State of New York 2006 NY Slip Op 52566(U) [14 Misc 3d 1230(A)] Decided on December 15, 2006 Ct Cl Ferreira, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 15, 2006
Ct Cl

Efrain Suarez, Claimant

against

State of New York, Defendant.



111696

James H. Ferreira, J.

Claimant alleges, among other things, that he sustained injuries as a result of the State's (hereinafter defendant) negligence when he fell from the top of his bunk bed while an inmate at Upstate Correctional Facility. More specifically, claimant alleges that defendant provided him with a mattress that was larger than the bed frame, thereby creating the condition that resulted in his injuries. Claimant also alleges that he was denied and/or delayed access to necessary medical treatment for his injuries in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Issue was joined and, in addition to general denials, defendant asserted four affirmative defenses - contributory negligence, third party negligence, assumption of the risk and failure to state a cause of action.

Claimant now moves the Court, pursuant to CPLR 3211 (b), for an order striking defendant's affirmative defenses. In response, defendant withdraws the affirmative defense of assumption of the risk and opposes the motion to strike with respect to the three remaining affirmative defenses. Defendant also cross moves for an order dismissing the cause of action alleging violations of the Federal Constitution pursuant to Civil Practice Law and Rules 3211 (a) (2) and (7).

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 [2001]; see Nahrebeski v Molnar, 286 AD2d 891 [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 [1994], quoting Grunder v Recckio, 138 AD2d 923). 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, ___ AD3d ___, 2006 NY Slip Op 08237, *1 [Nov. 14, 2006]).

Based upon the foregoing principles, the Court concludes that claimant's motion to strike with respect to the three remaining affirmative defenses must be denied. In support of his [*2]motion, claimant offers his own self-serving affidavit, devoted largely to expanding upon the contested allegations. Notably, claimant's supporting affidavit is devoid of any proof that the affirmative defense of third party negligence is without merit as a matter of law (see id.).[FN1] Claimant does aver that the mattress overlapped the bed frame by "at least 6 inches or more," and that the lip of the bed frame was turned in a downward direction so that the mattress was not prevented "from slipping off the bedding area." However, in opposition to the motion, defendant posits that "claimant's own inattention or horseplay, or the actions of a third person" may have contributed to the fall. Assuming claimant was inattentive or that he engaged in horseplay, as the Court is required to do for purposes of this motion, then it is reasonable to infer therefrom that claimant's own negligence may have been a contributing factor resulting in his injuries.

Moreover, when the Court considers the self-serving nature of claimant's supporting statements, the fact that very little, if any, discovery has been conducted (see Verley v State of New York, Ct Cl, Scuccimarra, J., Claim No. 109514, M-69137, December 7, 2004 UID No. #2004-030-596), and that, "the issue of contributory negligence [or the negligence of others, for that matter] . . . is a jury question in all but the clearest cases" (MacDowall v Koehring Basic Constr. Equip., 49 NY2d 824, 827 [1980]), it is unable to conclude that the affirmative defenses of contributory negligence and third party negligence are without merit as a matter of law.

Additionally, the rule in the Appellate Division, Third Department, "as in the First Department, is that the pleaded defense of failure to state a cause of action is harmless surplusage and a motion to strike it should be denied as unnecessary" (Pump v Anchor Motor Freight, Inc., 138 AD2d 849, 851 [1988]; see Schmidt's Wholesale v Miller & Lehman Constr., 173 AD2d 1004, 1005 [1991]; Dubois v Vanderwalker, 245 AD2d 758, 760 [1997]). Accordingly, the claimant's motion to strike the affirmative defense of failure to state a cause of action is also denied as unnecessary.

Finally, defendant asks the Court to determine whether it has jurisdiction over damage claims against the State based upon violations of the Federal Constitution. The Court looks to relevant portions of the Court of Appeals' decision in Brown v State of New York (89 NY2d 172 [1996]), and its progeny, for guidance. In Brown, supra, claimant's first five causes of action alleged violations of State and Federal constitutional rights, including the Fourth and Fourteenth Amendments to the United States Constitution, thereby violating 42 USC § 1981 (id. at 184). The Court of Appeals, relying upon the United States Supreme Court's ruling in Jett v Dallas Ind. School Dist. (491 US 701 [1989]), concluded that claimant's first five causes of action were properly dismissed (see id. at 186). Interpreting the Court's ruling in Jett, supra, the Court of Appeals stated that "section 1983 provides the exclusive Federal damages remedy for violation of the rights guaranteed by section 1981" and that, since "[t]he State is not a person' within [section 1983]. . . it cannot be liable in an action based on section 1981" (id. at 185).

Thereafter, in Lyles v State of New York, (2 AD3d 694 [2003]), as here, the claim was not based on common-law torts, but rather the allegations involved violations of, among other provisions under the Federal and State Constitutions, the Fourteenth Amendment to the United [*3]States Constitution (see Lyles v State of New York, 2 AD3d at 695). In light of the absence of "congressional or state legislative approval" for the creation of "a monetary cause of action against the State based upon the Federal Constitution," Judge Ruderman (Court of Claims) concluded, as does this Court, that "it would be inappropriate and unwarranted for [the] Court to imply such a cause of action" (Lyles v State of New York, 194 Misc 2d at 35-36). Upon appeal, the Second Department affirmed this aspect of Judge Ruderman's decision and held simply that "the Court of Claims properly dismissed the federal constitutional claims on the ground that it lacked subject matter jurisdiction" (Lyles v State of New York, 2 AD3d 694 at 696). The Court of Appeals subsequently affirmed the Second Department's decision to dismiss the claim, but did so based upon the separate ground of failure to timely commence the claim (see Lyles v State of New York, 3 NY3d 396 at 401).

It is the determination of this Court that, under the circumstances of this case, where no issue regarding the timeliness of the claim has been raised, the rationale employed by the Supreme Court in Brown, (supra), and by the Court of Claims and the Second Department in Lyles, (supra), is equally applicable to the instant matter. Moreover, it appears from a review of the allegations that, absent expiration of the applicable statute of limitations, an alternate avenue in the nature of medical negligence and/or malpractice exists (cf. Brown, supra at 188-192; Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]; Waxter v State of New York, 33 AD3d 1180 [2006]; Bullard v State of New York, 307 AD2d 676, 678-679 [2003]). Thus, it is the determination of this Court that it lacks subject matter jurisdiction over claimant's alleged violations of the Eighth and Fourteenth Amendments to the United States Constitution and, accordingly, this aspect of the claim must be dismissed.

For the reasons discussed above, the Court hereby denies claimant's motion to strike the affirmative defenses of contributory negligence, third party negligence and failure to state a cause of action, (the affirmative defense of assumption of the risk having been withdrawn), and grants defendant's cross motion to dismiss that portion of the claim alleging violations of the Federal Constitution.

Accordingly, it is ORDERED that Motion No. M-71782 is hereby denied and that Cross Motion No. CM 71802 is hereby granted. Footnotes

Footnote 1: Claimant does recite the defense in his affidavit, but goes on to discuss how he should not "be held accountable for [the State's] neglect," failing to establish, prima facie, that the affirmative defense of third party negligence is without merit as a matter of law.