New York State Court of Claims

New York State Court of Claims

MC CANTS v. STATE OF NEW YORK, (CAYUGA CORRECTIONAL), #2002-005-504, Claim No. 104486, Motion Nos. M-64341, M-64530


Claimant's motion for an order striking the Defendant's verified answer is granted to the extent noted and is otherwise denied and Defendant's motion for leave to amend its answer is granted to the extent noted and is otherwise 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):
M-64341, M-64530
Cross-motion number(s):

Claimant's attorney:
Andre T. Mc Cants,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Heather R. Rubinstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 22, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On February 13, 2002, the following papers, numbered 1 to 6, were read on motion by Claimant for an order striking the Defendant's verified answer and on motion by Defendant to amend its answer:
  1. Claimant's Notice of Motion and Exhibits Annexed
2, 3 Defendant's Notice of Motion, Affirmation and Exhibits Annexed
  1. Claimant's Preliminary Statement in Opposition
5, 6 Filed Papers: Claim, Answer

Upon the foregoing papers, both motions are granted to the extent noted and otherwise denied.

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 York).[1] 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], Bell, J.).

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 specified.

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 stricken.

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.

February 22, 2002
Rochester, New York

Judge of the Court of Claims

[1] See Decision and Order UID# 2001-005-546 at the Court of Claims website,