New York State Court of Claims

New York State Court of Claims

JACKSON v. THE STATE OF NEW YORK, #2001-011-522, Claim No. 102670, Motion No. M-62651


Synopsis


Claimant's motion to dismiss the first through fifth affirmative defenses in the verified answer is denied.

Case Information

UID:
2001-011-522
Claimant(s):
JOE JACKSON, 95 A 0426
Claimant short name:
JACKSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102670
Motion number(s):
M-62651
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Joe Jackson, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Kevan J. Acton, Esq., Assistant Attorney General)
Third-party defendant's attorney:

Signature date:
February 21, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has moved to dismiss the first through fifth affirmative defenses in the verified answer.

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).

Although claimant argues in his affidavit in support of the motion that the affirmative defenses are "baseless", he offers only assumed facts in support of his conclusion. Claimant must provide more than conclusory assertions to establish that an affirmative defense is without merit. Accordingly, the motion is denied.

February 21, 2001
Saratoga Springs, New York

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



Papers submitted:

1. Notice of Motion dated October 19, 2000
2. Affidavit in Support sworn to the 26th day of October, 2000
3. Affirmation in Opposition of Kevan J. Acton, Esq. dated December 1, 2000
4. Unsworn letter of Joe Jackson dated December 7, 2000.