New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2001-010-080, Claim No. 104944, Motion No. M-64114


Synopsis


Claimant's motion to strike defendant's affirmative defenses asserted in its answer is DENIED.

Case Information

UID:
2001-010-080
Claimant(s):
RAFAEL PEREZ The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
PEREZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104944
Motion number(s):
M-64114
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
RAFAEL PEREZPro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 11, 2001
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-2 were read and considered by the Court on claimant's motion to strike defendant's affirmative defenses asserted in its answer:[1]
Notice of Motion, Claimant's Supporting Affidavit.................................................1

Defendant's Affirmation in Opposition.....................................................................2

Filed Papers: Claim, Answer

Claim No. 104944 alleges that on May 9, 2001, claimant was in Involuntary Protective Custody and was released from his cell for the afternoon meal when he was called to the back of the gallery by one of three inmates. Claimant complied and was beaten by the three inmates. Thereafter, claimant was placed in keeplock and disciplined for the altercation. Claimant alleges that defendant had notice of the inmates' violent propensities and failed to take appropriate actions and that his Misbehavior Report was false. He further alleges that, in an attempted cover-up, his injuries were not photographed on May 9, 2001. Claimant seeks $10,000 in damages:
to cover the cost of all furture [sic] expenses as a direct result of damages to his head, his left mental eye-orbital and his left hand and rist [sic], in addition to the multiple bruises, contusions, abrasions, and lacerations he received as a result of the beating by these three inmates, know [sic] to the department and its personnel

(Claim).

Claimant brings the instant motion to strike the affirmative defenses raised in Defendant's answer.[2]

Claimant's motion is GRANTED to the extent that the fourth and fifth affirmative defenses are stricken. The fourth affirmative defense states that claimant has failed to mitigate his damages. Defendant has not shown any basis, either in law or fact, for sustaining such affirmative defense in this case. The fifth affirmative defense asserts that claimant has failed to state, with any particularity, the basis for monetary damages sought. Given a liberal reading of this pro se inmate's claim, the Court finds that the fifth affirmative defense is unfounded.

Claimant's motion is DENIED as to the remaining affirmative defenses because they have an appearance of merit and their resolution must await trial.


December 11, 2001
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] Claimant's motion papers are labeled "Motion to Dismiss and Strike the Defendants [sic] Answer"; however the application addresses only the affirmative defenses and not the entire answer. Accordingly, the Court treats the motion as one to strike the affirmative defenses.
[2] Defendant has withdrawn its eighth affirmative defense.