New York State Court of Claims

New York State Court of Claims

ENCARNACION v. THE STATE OF NEW YORK, #2001-011-524, Claim No. 102386, Motion No. M-62734


Synopsis


Claimant's motion to dismiss the first, second, third, fourth and eighth affirmative defenses in the verified answer is denied.

Case Information

UID:
2001-011-524
Claimant(s):
JOSUE ENCARNACION
Claimant short name:
ENCARNACION
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102386
Motion number(s):
M-62734
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Josue Encarnacion, Pro se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Eileen E. Bryant, Esq., Assistant Attorney General)
Third-party defendant's attorney:

Signature date:
February 22, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant has moved to dismiss the first, second, third, fourth and eighth affirmative defensesin the verified answer. In its response to the motion, defendant has agreed to withdraw the first, second and third affirmative defenses.

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 fourth affirmative defense is based upon a claim of immunity while the eighth affirmative defense indicates that defendant would be entitled to an offset for any payment claimant may receive from the correctional facility regarding the claim. Claimant has failed to show that either defense is without merit. Accordingly, the motion is denied.


February 22, 2001
Saratoga Springs, New York

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



Papers submitted:

1. Notice of Motion to Strike and Affidavit in Support sworn to the 2nd day of November, 2000.
2. Affirmation in Opposition dated December 4, 2000 with exhibit annexed.