5, 6 Filed Papers: Claim, Answer
Upon the foregoing papers, both motions are granted to the extent noted and
Claimant's motion to strike the answer, in essence, disputes the affirmative
defenses alleged in the answer. In opposition to the motion, the Defendant
moves to amend its answer by amending its Ninth and Eleventh Affirmative
Defenses, alleging the lack of verification of the Notice of Intention to file a
claim and the claim, respectively, and adding the Fifteenth Affirmative Defense,
alleging improper service of the claim. The Answer herein is dated June 19,
2001, and the motion to amend the answer is dated December 19, 2001.
To the extent that the motion seeks to add the affirmative defense alleging
improper service, it is denied. This affirmative defense, sought long after the
40 day period following service of the claim, seeks to raise a defense that is
waived if not timely raised (Harris v State of New
Indeed, Presiding Judge Susan
Phillips Read has denied a motion made in identical circumstances (Adebambo v
State of New York
, 181 Misc 2d 181). Any objection to the manner or
timeliness of service of the notice of intention or the claim was waived.
To the extent that the Defendant seeks to amend its answer to add allegations
of the lack of verification of the notice of intention and the claim, I have
found that these are non-waivable defenses (Martin v State of New York,
185 Misc 2d 799), and thus there is no prejudice in allowing such amendments,
and the motion is granted to that limited extent.
However, my review of the claim filed with the Clerk of the Court on June 27,
2001, does contain a document entitled "Verification," sworn to on June 13,
2001. The copy of the claim attached as Exhibit B to Defendant's motion does
not include such verification. Assuming such proper verification of the filed
claim, I note parenthetically that the waiver of defenses related to timeliness
and manner of service of the claim would seemingly negate any defense related to
the purportedly unverified notice of intention (cf. Loper v State of New
York, Feb. 20, 2002 [Claim No. 102779, Motion Nos. M-64550 and CM-64653],
For the most part Claimant merely makes conclusory statements disputing the
allegations in the affirmative defenses. The Defendant does not specifically
oppose Claimant's motion seeking to strike the answer, and does not address the
arguments urged by Claimant. However, this is a claim which alleges negligence
relating to the loss of certain personal property. By making this motion,
Claimant puts the Defendant to the test of minimally setting forth a factual
underpinning for its allegations.
Thus, with respect to the Third Affirmative Defense, alleging culpable conduct
by a third person not under Defendant's control, the motion is granted. The
incident took place in a correctional facility and its inhabitants are either
inmates or employees of the Defendant, none of whom are identified or
The Seventh and Eight Affirmative Defenses relate to safety devices or misuse
of products and, particularly given Defendant's silence, have no bearing or
implied or inferred relevance to a personal property claim. They are
The Tenth Affirmative Defense relates to the failure to file a CPLR article 78
petition is stricken as irrelevant and unsupported.
The Twelfth Affirmative Defense is stricken as Claimant has indeed numbered the
paragraphs in the claim, directly contrary to such allegation.
The other affirmative defenses are not stricken, but of course, are subject to
proof at trial.
Accordingly, the Claimant's motion is granted to the extent noted and is
otherwise denied. The Defendant's motion is granted to the extent noted and is
otherwise denied. The Clerk is directed to serve the order herein.