New York State Court of Claims

New York State Court of Claims

HARRIS v. THE STATE OF NEW YORK, #2002-015-241, Claim No. 105348, Motion Nos. M-64575, M-64578


Claimant's unopposed motion to extend time to respond to defendant's demands granted. Claimant's separate motion to strike the defendant's answer as non-responsive to the claim is denied.

Case Information

GEORGE HARRIS The Court hereby amends the claim, sua sponte, to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court hereby amends the claim, sua sponte, to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-64575, M-64578
Cross-motion number(s):

Claimant's attorney:
George Harris, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael R. O'Neill, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 17, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moved (M-64575) for an order extending his time to respond to the defendant's demand for a bill of particulars, omnibus discovery demands and a notice of examination before trial. The Assistant Attorney General then assigned to the matter advised the Clerk of the Court by letter dated January 10, 2002 that the State had no objection to the relief sought. The motion is, therefore, granted and claimant is hereby directed to serve a verified bill of particulars and responses to discovery demands upon the Attorney General and file a copy with the Clerk of the Court within 60 days of the filing of this decision and order. In a separate motion (M-64578) claimant seeks an order striking the defendant's verified answer as non-responsive to the claim pursuant to CPLR 3018. Specifically, claimant objects to an apparent reference to him as "she" in the purported answer. He also alleges in the wherefore clause of his affidavit in support of the motion that the purported answer was not properly verified. The claimant did not attach a copy of the pleading to which his motion is addressed.

The State's answer filed with the Clerk of the Court on January 18, 2002 was properly verified and contains no gender specific references.

The motion must be denied. Section 3018 of the Civil Practice Law and Rules cited by the claimant does not provide a basis for the instant motion. In fact, such a motion has not existed in New York civil practice since the adoption of the Civil Practice Law and Rules in 1963. Professor Siegel in his commentaries to § 3018 of the CPLR (Siegel, Practice Commentaries, McKinney's Cons Law of NY Book 7B, CPLR C 3018:4 at 148) notes that "Rule 103 of the old (pre-1963) Rules of Civil Practice authorized a motion to strike a denial if it was found to be a sham. " He further states that "[t]he CPLR has no such motion. There is no motion to strike denials, whether because sham or frivolous or interposed in bad faith or anything else." Professor Siegel suggests the plaintiff's remedy is to pursue summary judgment if the denials are in improper form and are directed at issues which go to the heart of the case. If the denials are in proper form, or substantially so, plaintiff has no remedy but to prepare the proof and get ready for trial. Professor Siegel suggests an alternative remedy pursuant to CPLR 3212 (g) which allows the Court on a motion for summary judgment to deem established those allegations in the complaint which the defendant has not properly denied. Another alternative is for the claimant to elicit admissions from the defendant of the matters improperly denied through a notice to admit authorized by CPLR § 3123.

In any event, it appears that neither the Court of Claims Act, the Uniform Rules for the Court of Claims, nor the CPLR permit a motion to strike an answer on the ground urged by the claimant and, accordingly, claimant's motion to strike the answer is denied (see, Abrahao v Perrault, 147 AD2d 824).

April 17, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

Motion No. M-64575:
  1. Notice of motion dated January 7, 2002;
  2. Affidavit of George Harris sworn to January 7, 2002;
  3. Letter dated January 10, 2002 from Michael R. O'Neill.

Motion No. M-64578:

  1. Notice of motion dated January 14, 2002;
  2. Affidavit of George Harris sworn to January 14, 2002.