New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2000-011-572, Claim No. 102319, Motion No. M-61846


Synopsis


Claimant's motion to dismiss affirmative defenses of culpable conduct, assumption of risk, failure to state a cause of action, governmental immunity, late filing of the claim, sovereign immunity, privilege and failure to particularize the elements of the claim as required by Court of Claims Act §11 is denied.

Case Information

UID:
2000-011-572
Claimant(s):
SHAWN GREEN
Claimant short name:
GREEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102319
Motion number(s):
M-61846
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Shawn Green, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Saul Aronson, Esq., Assistant Attorney General)
Third-party defendant's attorney:

Signature date:
August 23, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


Claimant has moved to dismiss affirmative defenses of culpable conduct, assumption of risk, failure to state a cause of action, governmental immunity, late filing of the claim, sovereign immunity, privilege and failure to particularize the elements of the claim as required by Court of Claims Act §11.

The claim is based on allegations that Claimant was deprived of liberty and property without due process of law in connection with a disciplinary proceeding.

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 Motorola Communications & Elecs., 208 AD2d 1150). Claimant has failed to establish that any of the defenses are inadequate as pleaded or are without merit. Accordingly, the motion to dismiss defenses is denied.

Claimant has also requested an immediate trial of the issues raised on the motion (CPLR 3211[c]). The request is denied.

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).


August 23, 2000
Saratoga Springs, New York

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



Papers Considered:

1. Notice of Motion dated June 6, 2000.
2. Affidavit in Support sworn to the 6th day of June, 2000 with exhibits annexed.
3. Affirmation in Opposition of Saul Aronson, Esq., dated June 28, 2000 with exhibits annexed.
4. Reply Affidavit of Claimant sworn to the 5th day of July, 2000.