New York State Court of Claims

New York State Court of Claims

REYNOLDS v. THE STATE OF NEW YORK, #2002-005-500, Claim No. 105178, Motion No. M-64487


Synopsis


Claimant's motion for an order striking the affirmative defenses is denied.

Case Information

UID:
2002-005-500
Claimant(s):
ROY REYNOLDS
Claimant short name:
REYNOLDS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105178
Motion number(s):
M-64487
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Roy Reynolds,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Christopher Wiles, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 8, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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
  1. Affirmation in Opposition and Exhibits Annexed
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 constitutional tort.

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 Affirmative Defense).

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 premature.

The motion is denied in all respects.


February 8, 2002
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims