New York State Court of Claims

New York State Court of Claims

DAVIDSON v. THE STATE OF NEW YORK, #2002-011-557, Claim No. 105494, Motion No. M-64858


Claimant's motion to strike affirmative defenses asserted in the answer is 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):
Cross-motion number(s):

Claimant's attorney:
Chester Davidson, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Eileen E. Bryant, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 17, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has made an application, in this action based upon a bailment, 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 asserts that the court is without jurisdiction because the claim does not set forth the items of damage claimed as required by Court of Claims Act §11. The copy of the claim attached to the affirmation in opposition submitted on behalf of defendant does not contain a statement of the items of property lost. The claim filed with the court, however, has exhibits attached which do show the particular items alleged to have been lost. Because the court does not know whether the same exhibits were attached to the claim served on defendant, doubt exists as to the availability of this defense and therefore, it should not be dismissed.

The second affirmative defense is based on the assertion that defendant is not liable for lost property which claimant did not own or rightfully possess. Without deciding the extent to which this defense may be utilized, it should not be stricken. No disclosure has been conducted in this recently filed claim and a party should be permitted a reasonable opportunity to conduct disclosure with respect to an issue raised in the pleadings before it is summarily decided (see, CPLR 3212[f]). The principle also applies with respect to the third and fourth affirmative defenses which allege culpable conduct on the part of claimant and intervening acts of third persons.

In the fifth affirmative defense defendant alleges that its liability is limited by any payment claimant has accepted or will accept on an administrative claim for the losses alleged in this action. Claimant attached to the claim filed with the court documentation showing that the institutional claim he filed was denied at the facility level and that he appealed that determination. There is no indication, however, as to the outcome of the appeal. Inasmuch as an award may have been made on appeal, the issues raised in the fifth affirmative defense cannot be said to be without merit.

Based upon the foregoing, the motion is denied.

June 17, 2002
Saratoga Springs, New York

Judge of the Court of Claims

Papers Submitted:

1. Notice of Motion dated March 7, 2002
2. Affidavit in Support of Chester Davidson verified on the 7th day of March, 2002
3. Affirmation in Opposition of Eileen E. Bryant, Esq. dated April 10, 2002 with exhibits annexed

4. Unsworn Reply to Opposition of Chester Davidson dated April 15, 2002