New York State Court of Claims

New York State Court of Claims

ROJAS v. THE STATE OF NEW YORK, #2001-015-183, Claim No. 104242, Motion No. M-63707


Pro se claimant's motion to strike State' s affirmative defenses of quasi-jurisdictional determination in case alleging assault by correction officer granted. Motion to strike affirmative defense of justification denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Glenn Rojas, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 20, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The claimant's motion for an order striking the "first" and "second" affirmative defenses set forth in the State's answer to the claim is granted in part and denied in part as provided below. The claim, which was filed on May 7, 2001 pursuant to a decision and order of this Court dated April 3, 2001 granting the claimant's motion for late claim relief, seeks to recover damages for an assault and battery allegedly perpetrated on claimant by unnamed correction officers at Mid-State Correctional Facility, Marcy, New York on March 4, 2000. Defendant's answer to the claim dated and filed on June 11, 2001 sets forth the following affirmative defenses:

5. Defendant, through its agents and/or employees took actions which were privileged as being judicial, quasi-judicial or discretionary determinations made by such agents or employees while acting within the scope of their duties as public officials and therefore defendant is immune from any liability for such actions.


6. That the actions of the defendant were at all times justified and based upon probable cause.
The claimant seeks an order dismissing both of these defenses on the ground that the alleged assault was not a judicial, quasi-judicial or discretionary determination made by the defendant's agents or employees acting within the scope of their duties and accordingly was not a privileged action subject to immunity. He further alleges on the motion that the actions of the unnamed correction officers in perpetrating the alleged assault were neither justified nor based upon probable cause. His motion is supported by his own affidavit and photocopies of daily log sheets obtained by claimant through the Freedom of Information Law (Public Officers Law § 87).

The defendant's opposition to the motion consists solely of the affirmation of Assistant Attorney General G. Lawrence Dillon dated July 6, 2001 which opposes the motion with conclusory language that defendant has "presented sufficient evidence to establish the pleadings [sic] of the affirmative defenses of justification and privilege . . . "

It has been said with regard to the content of affirmative defenses that "they are subject to the same basic pleading rules that apply to a claim" (Sinacore v State of New York, 176 Misc 2d 1; Siegel, Practice Commentary, McKinney's Cons Laws of NY, Book 7B CPLR c:-18:19 p. 160; see, CPLR 3013). "[T]he statement should give notice of the relevant transactions and occurrences and set forth the material elements of the defense" (Sinacore v State of New York, supra). Here the defendant merely states in the affirmative defenses that the actions taken by the State employees were privileged as judicial, quasi judicial or discretionary and that such actions were justified and based upon probable cause.

It is clear from the Court of Appeals decision in Arteaga v State of New York, 72 NY2d 212 that where correction officers "act under the authority of and in full compliance with the governing statutes and regulations . . . their actions constitute discretionary conduct of a quasi judicial nature for which the State has absolute immunity." It is equally clear, however, that where such State employees exceed their authority or do not comply with such statutes and regulations the State may, upon a proper showing, be held liable. The use of excessive force by a law enforcement official in the lawful course of his/her duties has been found to support a cause of action for assault (see, Stein v State of New York, 53 AD2d 988; Jones v State of New York, 33 NY2d 275; Hinton v City of New York, 13 AD2d 475).

It appears to this Court that the alleged intentional acts of which the instant claimant complains cannot, as a matter of law, be found to constitute "judicial, quasi-judicial or discretionary determinations" as asserted in the first affirmative defense within the context of privileged activity described in Arteaga v State of New York, supra. The claimant's motion to dismiss the "first" affirmative defense is granted. A contrary result is reached with regard to the "second" affirmative defense since the activity complained of, if proven, may be shown to have been undertaken in response to claimant's own assaultive behavior and in that regard may be determined to have been justified under the circumstances. Such determination must, however, await the proof at trial. Probable cause does not appear to be relevant to the allegations of the instant claim but its inclusion in the defense does not require that it be struck. Claimant's motion seeking an order striking the second affirmative defense is denied.

September 20, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 29, 2001;
  2. Affidavit of Glenn Rojas sworn to June 29, 2001 with exhibit;
  3. Affirmation of G. Lawrence Dillon dated July 6, 2001;
  4. Affidavit of Glenn Rojas sworn to July 27, 2001, with exhibits.