On January 16, 2002, the following papers, numbered 1 to 5, were read on motion
by Claimant for an order striking the affirmative defenses:
1, 2 Notice of Motion, Sworn Memorandum of Law in Support
4, 5 Filed Papers: Claim, Answer
Upon the foregoing papers, this motion is denied.
In this motion, Claimant seeks to strike all six affirmative defenses alleged
in the answer. I will address each affirmative defense below.
The claim herein was filed on November 7, 2001, and, inter alia, alleges
inhuman treatment, denial of adequate medical care, discrimination based on a
medical disability, deframation (sic) of character, illegal confinement and
The Defendant's verified answer, filed on November 21, 2001, includes six
affirmative defenses. Claimant seeks to strike all six defenses.
The defenses can be categorized for simplicity's sake as alleging lack of
subject matter and personal jurisdiction due to untimely service of the claim or
notice of intention (First Affirmative Defense); untimely service and filing
(Second Affirmative Defense); failure to state a cause of action against the
Defendant (Third Affirmative Defense); failure to particularize the nature of
the cause of action (Fourth Affirmative Defense); culpable conduct by Claimant
(Fifth Affirmative Defense) and culpable conduct by third parties (Sixth
The Defendant opposes the motion as premature, noting that no discovery has
taken place and that it has just served a demand for a bill of particulars
contemporaneously with its opposition to the motion. I agree that as to the
Third, Fourth, Fifth and Sixth Affirmative Defenses a motion to strike is
premature until such time as discovery proceeds.
As to the First Affirmative Defense, the Defendant alleges that no claim or
notice of intention was filed within 90 days of accrual. Given the denial in
the answer of the allegation in the claim in the second Paragraph 8 with respect
to the service of a notice of intention on August 15, 2001, the burden shifts to
the Claimant to establish proof of such service. Claimant failed to even
address such service, and did not append the "green card" the return receipt
card from the U.S. Post Office.
As to the Second Affirmative Defense, Claimant's motion does not dispute the
allegations of the dates of accrual of the cause(s) of action, and ignores the
recitation of the statutory requirements of the Court of Claims Act §10,
arguing instead that another statute applies (referred to as AEDPA of 1997
and/or ADPEDA of 1996).
Accordingly, as to the First and Second Affirmative Defenses, Claimant has
failed to demonstrate any basis on which they should be stricken. As to the
Third, Fourth, Fifth and Sixth Affirmative Defenses, the motion is
The motion is denied in all respects.