New York State Court of Claims

New York State Court of Claims

MATHIEU v. THE STATE OF NEW YORK, #2002-016-093, Claim No. 105667, Motion No. M-65576


Motion to strike affirmative defenses was granted in part and denied in part.

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):

Alan C. Marin
Claimant's attorney:
Patrick Mathieu
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Joseph F. Romani, AAG
Third-party defendant's attorney:

Signature date:
September 24, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)


In his underlying claim, Patrick Mathieu asserts that because of defendant's negligence, his typewriter was damaged in transit between correctional facilities. This is Mr. Mathieu's motion to strike the State's first, second, fourth, fifth and sixth affirmative defenses. With regard to the first and second affirmative defenses, which dealt with the timeliness of Mathieu's claim, defendant "hereby withdraws these defenses" in its responsive papers. See ¶4 of the September 6, 2002 affirmation of Joseph F. Romani.

Defendant's fourth affirmative defense is that the claim fails to comply with §11 of the Court of Claims Act (the Act") in that it does not "include the total sum claimed for damages or injuries . ." See ¶9 of the answer. While the final paragraph of the claim does not include a monetary amount, the claim does state that the typewriter cost $79.99 and indicates that claimant seeks half of the original cost, or $40.00. See ¶¶8 and 12 of the claim. This is sufficient for §11 of the Act.

Defendant's fifth affirmative defense alleges in relevant part that claimant's damages "were caused in whole or in part or were contributed to by the culpable conduct, including assumption of risk, and want of care on the part of the claimant." The sixth affirmative defense alleges in relevant part that if any negligence, fault or want of care caused or contributed to claimant's damages, "it was the negligence or fault or want of care of some third person or persons . . ." See ¶¶10 and 12 of the answer. Such defenses raise issues which may be addressed at trial. Moreover, affirmative defenses are not dispositive of a claim. Like the allegations in a claim, they are merely assertions made by a party. No prejudice has been identified by claimant which would warrant striking defendant's fifth and sixth affirmative defenses. See., e.g., 5 Weinstein-Korn-Miller, NY Civ Prac ¶3018.14 at 30-410.

Accordingly, having reviewed the parties' submissions[1], IT IS ORDERED that motion no. M-65576 be granted to the extent that defendant's first, second and fourth affirmative defenses be stricken, and otherwise be denied.

September 24, 2002
New York, New York

Judge of the Court of Claims

  1. [1]The following were reviewed: claimant's notice of motion with affidavit in support and memorandum of law and exhibit 1; and defendant's affirmation in response.