New York State Court of Claims

New York State Court of Claims

LARRY v. THE STATE OF NEW YORK, #2002-011-581, Claim No. 104322, Motion No. M-65371


Synopsis


Claimant's motion to dismiss three defenses asserted in answer is denied.

Case Information

UID:
2002-011-581
Claimant(s):
MARK LARRY, DIN 87 T 1430
Claimant short name:
LARRY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104322
Motion number(s):
M-65371
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Mark Larry, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 10, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has moved to dismiss three 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. Company 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. A pleaded defense of failure to state a cause of action is harmless surplusage and a motion to strike it is unnecessary and should be denied (Pump v Anchor Motor Freight, Inc., 138 AD2d 849). In addition, claimant has failed to set forth, other than by conclusory assertion, why the other two defenses are without merit. Accordingly, the motion is denied.


September 10, 2002
Saratoga Springs, New York

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


Papers Submitted:

1. Notice of Motion to Dismiss Defense dated May 30, 2002
2. Affidavit in Support of Mark Larry sworn to the 30th day of May, 2002
3. Affirmation in Opposition of Michael W. Friedman, Esq. dated July 12, 2002