New York State Court of Claims

New York State Court of Claims

VENTIMIGLIA v. THE STATE OF NEW YORK, #2001-028-0500, Claim No. 102952, Motion No. M-62604


Claimant's motion to strike the affirmative defenses raised by defendant is deemed to be a demand for a bill of particulars with respect to such defenses, where the statements contained in the answer merely set forth statements of law and contained no factual allegations.

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:
Defendant's attorney:
BY: Eileen E. Bryant, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 4, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on claimant's motion for an order striking defendant's affirmative defenses, compelling the attendance of witnesses, and setting a trial date

1. Notice of Motion and Supporting Affidavit of Sebastian Ventimiglia, pro se, filed Oct. 20, 2000, with annexed Exhibit A ("Ventimiglia affidavit")

2. Affirmation in Opposition of Eileen E. Bryant, AAG, filed Nov. 1, 2000, with annexed Exhibits A & B ("Bryant affirmation")

3. Filed papers: Claim, filed Aug. 21, 2000; Answer, filed Sept. 26, 2000.

This bailment claim arose on May 27, 2000 when claimant arrived at Eastern Correctional Facility to discover that his personal word processor was severely damaged. As he was being processed into the facility, he was asked to turn over certain items -- including a gold cross and chain -- so that permits could be issued. On May 31, 2000, facility officials returned the other items but failed to return to him a gold cross and chain. Claimant filed and served this claim, on August 21 and 23, 2000, respectively. In its answer, the State raised the following affirmative defenses:

First Defense:

To the extent that the claim challenges official action involving the exercise of discretion on the part of correction officials, the State is immune from the liability alleged, and the claim is beyond the Court's subject matter jurisdiction.

Second Defense:

If at all, the State is liable only with respect to property that claimant owned and rightfully possessed under Department of Correctional Services directives. To the extent that Claimant did not own the property in question or possess the property in compliance with the terms and conditions of those directives, there can be no recovery. To the extent that the value of the property exceeded the limitations set forth in those directives, any recovery shall be correspondingly limited.

Third Defense:

The State of New York is not responsible for any damages alleged in the claim caused, in whole or in part, by claimant's own culpable conduct, as defined in CPLR 1411.

Fourth Defense:

The State of New York is not responsible for damages, if any, caused by the superseding intervention of persons or causes independent of the State, beyond the State's control, or acting outside the scope of their officials duties or employment.

Fifth Defense:

The State's liability, if any, will be limited by any payment claimant has accepted or will accept on an administrative claim for losses alleged herein or by any release claimant has executed pertaining to liability alleged herein.

Claimant now moves to strike these defenses.

The CPLR requires affirmative defenses to be set forth when there are matters which, if not pleaded, "would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading" (CPLR 3018). The statute includes the following non-exclusive list of affirmative defenses: "arbitration and award, collateral estoppel, culpable conduct claimed in diminution of damages as set forth in article fourteen-A, discharge in bankruptcy, facts showing illegality either by statute or common law, fraud, infancy or other disability of the party defending, payment, release, res judicata, statute of frauds, or statute of limitations." The party raising the affirmative defense bears the burden of proving its elements.

Because the statutory list is non-exclusive, and because failure to raise something that fits within the statutory definition constitutes a waiver of the defense, most practitioners follow the traditional sage advice: "if doubtful, treat as a defense and plead" (Siegel, Practice Commentary, McKinney's Consol Laws of NY, Book 7A, CPLR 3018, C:3018:16, p 157). As a result, responsive pleadings will often include "boilerplate" allegations that are not truly affirmative defenses. Pleading a matter that is not truly an affirmative defense does not shift the burden of proof to the defendant (Beece v Guardian Life Ins. Co., 110 AD2d 865), however, and that portion of the answer is considered merely "harmless surplusage" and has no legal effect (Dubois v Vanderwalker, 245 AD2d 758).

With respect to the content of affirmative defenses, they are subject to the same basic pleading rules that apply to a claim (Siegel, supra, C:3018:19, p 160; see CPLR 3013). This means that the statement should be sufficiently particular "to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each * * * defense."

The five affirmative defenses set forth above do not refer to any transactions or occurrences, nor do they contain any allegations specific to this claim. Instead, as was the case with the "conditional" affirmative defense in Sinacore v State of New York (176 Misc 2d 1),[1] each "is no more than a restatement of governing law" (or defendant's interpretation of governing law).

For example, the first affirmative defense set forth above states, in essence, that the State is not liable for official action involving the exercise of discretion. With some exceptions not relevant here, this is an accurate statement (see,
Arteaga v State of New York, 72 NY2d 212, 216, and cases cited therein
). What is not clear is whether defendant is alleging that some action or omission which caused the damage to claimant's typewriter or the loss of his cross and chain was discretionary in nature and thus immune. Likewise, the third affirmative defense merely states the "truism" that a defendant will not be liable for loss or injury that was caused by the claimant; it does not allege that this claimant engaged in conduct that caused the loss giving rise to this claim.

In fact, none of these affirmative defenses give notice of "the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each . . . defense" (CPLR 3013). When faced with the similar situation in Sinacore (supra, see footnote 1), former Judge James P. King stated:

In a frequently quoted statement from Fowles v State of New York (152 Misc 2d 837, 840, supra), defense counsel are warned that "[a] claimant should not be left in a quandary to determine what an affirmative defense is referring to" * * *. Here, the claimant is being left in an even more fundamental quandary: Is an affirmative defense being stated? We hold that it has not.

Admittedly, the situation presented here is not entirely comparable, because Sinacore involved the defense of failure to comply with the time limitations of the Court of Claims Act, a defense on which is imposed the additional pleading requirement that it must be stated "with particularity" (Court of Claims Act §11[c]). Nevertheless, this claimant is in much the same position, wondering what allegations defendant intends to prove to defeat his claim.

Defendant's response in opposition to the motion is puzzling. Counsel for defendant states that a motion to strike a defense "is only available against an outright defense, such as one of the affirmative defenses enumerated in CPLR 3018(b)" (Bryant affirmation, ¶ 10). She states further that the defenses have been set forth in order to preserve the State's right to plead and prove them and adds that the facts needed to justify or support the defenses "may exist but cannot now be stated" (id., ¶¶ 11, 12). The question that necessarily arises is why, if the facts supporting these defenses are known, can they not be stated, and if they are unknown, why were the defenses set out in the answer?

"A defendant who labels anything a ‘defense' is telling the plaintiff that there is affirmative matter the defendant is going to rely on, and the plaintiff is then within its rights in seeking to have the defendant particularize exactly what that is." (Siegel, Practice Commentaries, McKinney's Consol Laws of NY, Book 7B, CPLR 3018, C3018:16, supp, p 27). Especially when the wording of the defense is as ambiguous and uninformative as that presented in each of these examples, a claimant should not waste undue effort in preparing to refute the defenses and should immediately demand particulars. If the defendant can come up with no facts or other particulars to support a defense and cannot set forth discovery demands that would produce such facts or particulars (see, CPLR 3211[d]), there is then reason for plaintiff to request that defendant withdraw it or petition the Court to strike it. In theory, this motion to strike should have served the same purpose as a demand for a bill of particulars with respect to the affirmative defenses, but it is evident that defendant did not perceive a need to respond in that fashion. Rather than deprive defendant of the right to prove defenses to which it may be entitled, the Court will deny this motion but require the particularization to which claimant is entitled.

Claimant's motion is granted only to the extent that the motion shall be construed as a demand for a bill of particulars (CPLR 3042[a]). Defendant is directed to provide a response and set forth the facts supporting or justifying each of the answer's five affirmative defenses, or to make appropriate objection to the demand, within thirty days of the date that a file-stamped copy of this order is received by the Attorney General.

January 4, 2001
Albany, New York

Judge of the Court of Claims

[1] The affirmative defense at issue in that case read as follows: "That to the extent that the claim was not filed or served within the 90-day time limitation prescribed by Section 10 (3) and Section 11 of the Court of Claims Act or, if applicable, within the six-month time limitation prescribed by Section 10 (4) of the Court of Claims Act, the Court lacks subject matter jurisdiction of the claim and personal jurisdiction over the defendant, the State of New York." As observed in the decision, "This wording presents a conditional statement--that if the filing or service was untimely, then the court lacks jurisdiction to hear the claim" (176 Misc 2d at 3).