New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2000-011-509, Claim No. 101171, Motion No. M-60998


Claimant has moved to strike certain affirmative defenses raised in the answer and for summary judgment.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Thomas J. McNamara
Claimant's attorney:
Shawn Green, Pro Se, 97 A 0801
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Kevan J. Acton, Esq., of counsel)
Third-party defendant's attorney:

Signature date:
April 3, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has moved to strike certain affirmative defenses raised in the answer and for summary judgment. The claim is based on allegations that Claimant, an inmate at a correctional facility was not provided adequate medical care.

A motion to dismiss defenses may be made on the ground that a defense is not stated or has no merit (CPLR 3211[b]). On 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 proof submitted (Capital Tel. Company v M C E, Inc., 208 AD2d 1150). If there is any doubt as to the availability of a defense, it should not be dismissed (Becker v Elm Air Conditioning Corp., 143 AD 2d 965).

The first affirmative defense pleads failure to state a cause of action. A pleaded defense of failure to state a cause of action is harmless surplusage and a motion to strike it is unnecessary and should be denied (Pump v Anchor Motor Freight, Inc., 138 AD2d 849). The second and third affirmative defenses are based upon a claim of immunity. The fourth affirmative defense alleges culpable conduct of the Claimant and the fifth affirmative defense is based upon the culpable conduct of a third party. Claimant states in conclusory fashion that the defenses have no merit and that the defendant was negligent. However, he has not established that the affirmative defenses are without merit as a matter of law (see New York Univ. v Continental Insurance Co., 87 NY2d 308). Consequently, the defenses should stand. In addition, Claimant has failed to establish his entitlement to judgment as a matter of law and therefore, summary judgment is not appropriate (Hackstadt v Hackstadt, 194 AD2d 908). Accordingly, the motion is denied.

April 3, 2000
Saratoga Springs, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion dated December 21, 1999.
2. Affidavit in Support sworn to the 21st day of December, 1999 with exhibits attached.
3. Affirmation in Opposition of Kevan J. Acton, Esq., dated January 14, 2000.
4. Unsworn reply of Shawn Green dated March 10, 2000.