New York State Court of Claims

New York State Court of Claims

PETTY v. THE STATE OF NEW YORK, #2002-011-509, Claim No. 104645, Motion No. M-64322


Claimant's application to strike affirmative defenses are denied.

Case Information

JOHN PETTY, 00 A 2483
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:
John Petty, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 6, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has made an application to strike affirmative defenses asserted in the answer. A motion to dismiss defenses may be made on the ground that a defense is not stated or has no merit (CPLR 3211[b]). On a motion to dismiss a defense pursuant to CPLR 3211(b), all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the proof submitted (Capital Tel. Co. v Motorola Communications & Elecs., 208 AD2d 1150). If there is any doubt as to the availability of a defense, it should not be dismissed (Becker v Elm Air Conditioning Corp., 143 AD2d 965).

In the first affirmative defense, defendant has alleged culpable conduct on the part of claimant or some third party. Although the claim is based exclusively upon alleged intentional acts of defendant, the phrase culpable conduct as used in CPLR 1411 is broad enough to encompass not only negligence but also other breaches of legal duties and thus, may have application here (see, Barker v Kallash, 91 AD2d 372).

The second affirmative defense alleges failure to state a cause of action. Such a defense is harmless surplusage and a motion to strike it is unnecessary and should be denied (Pump v Anchor Motor Freight, Inc., 138 AD2d 849).

The third and fourth affirmative defenses, probable cause and lack of subject matter jurisdiction, have not been shown to be without merit and therefore, should not be stricken.

Defendant has withdrawn the fifth affirmative defense.

Claimant has not expressed any disagreement with the sixth affirmative defense which reserves to the Court all questions of law.

In the seventh affirmative defense, defendant has asserted that the claim should be brought as an Article 78 proceeding in Supreme Court. Insofar as such a defense exists, it is duplicative of the assertions that the claim fails to state a cause of action and that the Court lacks subject matter jurisdiction. As with the defense of failure to state a cause of action, it is harmless surplusage and a motion to strike it is unnecessary and should be denied.

The eighth affirmative defense is based upon an allegation that not all of the causes of action pleaded in the claim are contained in the notice of intention and as to those causes of action the claim is untimely. Claimant has not established that this defense is without merit.

The motion is granted with respect to the fifth affirmative defense and is in all other respects denied.

February 6, 2002
Saratoga Springs, New York

Judge of the Court of Claims

Papers Submitted:

  1. Notice of Motion dated November 7, 2001
  2. Affidavit in Support sworn to the 13th day of November, 2001
  3. Affirmation in Opposition of Glenn C. King, Esq. dated December 20, 2001