New York State Court of Claims

New York State Court of Claims

GONZALEZ v. THE STATE OF NEW YORK, #2000-011-546, Claim No. 102021, Motion No. M-61647


Synopsis


Claimant's motion to strike three affirmative defenses asserted in response to the claim alleging negligence in connection with an incident in which Claimant was injured while cleaning a

shower floor with a stripping machine is denied.

Case Information

UID:
2000-011-546
Claimant(s):
JUSTO GONZALEZ, 88 A 5958
Claimant short name:
GONZALEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102021
Motion number(s):
M-61647
Cross-motion number(s):

Judge:
Thomas J. McNamara
Claimant's attorney:
Justo Gonzalez, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Belinda A. Wagner, Esq., of counsel)
Third-party defendant's attorney:

Signature date:
July 13, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant has moved to strike three affirmative defenses asserted in response to the claim alleging negligence in connection with an incident in which Claimant was injured while cleaning a shower floor with a stripping machine. 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 AD2d 965).

The first and second affirmative defense allege culpable conduct on the part of Claimant and third parties.  In response to the attack on these defenses, Defendant asserts that the motion is premature as the claim is still being investigated. A party should be permitted a reasonable opportunity to investigate and conduct disclosure with respect to issues raised in the pleadings before they are summarily decided (see, CPLR 3212[f]). Here, the claim was filed only four months ago and no disclosure has been conducted. Accordingly, the application to strike the first and second affirmative defenses is denied as premature.

The third 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).

Accordingly, the motion is denied.


July 13, 2000
Saratoga Springs, New York

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



Papers Considered:


1. Notice of Motion dated April 21, 2000.

2. Affidavit in Support of Motion sworn to the 1st day of May, 2000.

3. Affirmation in Opposition of Belinda A. Wagner, Esq. dated May 11, 2000.