New York State Court of Claims

New York State Court of Claims

SOREANO v. THE STATE OF NEW YORK, #2000-011-534, Claim No. 101692, Motion No. M-61358


Synopsis


Claimant's motion to dismiss affirmative defenses of culpable conduct, third-party negligence and failure to use an available seat belt, is granted.

Case Information

UID:
2000-011-534
Claimant(s):
FELIX SOREANO
Claimant short name:
SOREANO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101692
Motion number(s):
M-61358
Cross-motion number(s):

Judge:
Thomas J. McNamara
Claimant's attorney:
Felix Soreano, 98 A 4034, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Frederick H. McGown, Esq, of counsel)
Third-party defendant's attorney:

Signature date:
May 25, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant has moved to dismiss the affirmative defenses of culpable conduct, third-party negligence and failure to use an available seat belt. The claim is based on allegations that Claimant was injured while riding in a vehicle owned and operated by Defendant.

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).

In his affidavit in support of the motion, Claimant alleges that at the time of the accident he was handcuffed and shackled to another inmate in a caged area of the bus with no access to the driver. He also maintains that at the time he was in the sole custody of Defendant and that the actions of the Defendant were responsible for his injuries. Finally, he alleges that the vehicle was not equipped with a seatbelt or shoulder harness. Defendant has not a opposed the motion.

Based upon the uncontroverted facts as alleged by Claimant in his affidavit, the motion is granted and the first, second and third affirmative defenses are stricken.


May 25, 2000
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Considered:

1. Notice of Motion for Judgment Dismissing Defendant's Defenses dated March 5, 2000.
2. Affidavit in Support sworn to the 5th day of March, 2000.