New York State Court of Claims

New York State Court of Claims

JACKSON v. THE STATE OF NEW YORK, ET AL, #2002-011-514, Claim No. 102670, Motion No. M-64478


Synopsis


Claimant's motion to move to strike five affirmative defenses pleased in the answer is denied.

Case Information

UID:
2002-011-514
Claimant(s):
JOE JACKSON, 95 A 0426
Claimant short name:
JACKSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102670
Motion number(s):
M-64478
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Joe Jackson, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kevan J. Acton, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 19, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant has moved to strike the five affirmative defenses pleaded 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).

The defenses asserted in the answer rely on qualified immunity, culpable conduct of claimant and others and failure to state a cause of action. In the affidavit submitted in support of the motion, claimant asserts, that based on responses by defendant to Notices to Admit and the mental health and other medical records, that defendant cannot rely on the defenses asserted. Review of the responses of defendant and the medical records do not support the bald assertion that the defenses have no merit. Accordingly, the motion is denied.


February 19, 2002
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Submitted:

1. Notice of Motion to Dismiss Defenses dated December 14, 2001
2. Affirmation (unsworn) in Support of Joe Jackson undated with exhibits annexed
3. Affirmation (unsworn) of Joe Jackson undated
4. Affirmation in Opposition of Kevan J. Acton, Esq. dated December 27, 2001