New York State Court of Claims

New York State Court of Claims

COLLADO v. THE STATE OF NEW YORK, #2001-011-580, Claim No. 103887, Motion No. M-63382


Synopsis


Claimant's motion to dismiss the affirmative defenses set forth in the verified answer is denied.

Case Information

UID:
2001-011-580
Claimant(s):
OSIRIS COLLADO, 00 A 1552
Claimant short name:
COLLADO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103887
Motion number(s):
M-63382
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Osiris Collado, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda A. Wagner, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 9, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant has moved to dismiss the affirmative defenses set forth in the verified answer. The claim is based on allegations that Claimant slipped and fell on an icy walkway at Bare Hill Correctional Facility. In the answer Defendant pleaded affirmative defenses of culpable conduct on the part of Claimant and of a third party as well as failure to state a cause of action.

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. Co. v Motorola Communications & Elecs., 208 AD2d 1150). Claimant has failed to establish that any of the defenses of culpable conduct of others are inadequate as pleaded or are without merit. In addition, 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 to dismiss defenses is denied.


August 9, 2001
Saratoga Springs, New York

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



Papers Submitted:

1. Notice of Motion to Dismiss Defense dated April 12, 2001
2. Affidavit in Support of Osiris Collado sworn to the 12th day of April, 2001 with exhibits annexed
3. Affirmation in Opposition of Belinda A. Wagner, Esq. dated April 25, 2001