New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2002-019-577, Claim No. 105785, Motion Nos. M-65743, M-65750


Synopsis


Claimant's motions for permission to amend Demand for Interrogatories and to strike various affirmative defenses contained in State's Verified Answer are denied.

Case Information

UID:
2002-019-577
Claimant(s):
JOSE RIVERA
Claimant short name:
RIVERA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105785
Motion number(s):
M-65743, M-65750
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
JOSE RIVERA, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
October 9, 2002
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

By way of these motions, Claimant, an inmate appearing pro se, seeks an order granting him permission to correct his previously served demand for interrogatories, as well as an order striking various affirmative defenses contained in the Verified Answer. The State of New York (hereinafter "State") opposes both motions.


The Court has considered the following papers in connection with these motions:
  1. Claim, filed March 20, 2002.
  2. Verified Answer, filed April 12, 2002.
  3. "Claimant's Interrogatories Directed To: Mrs. Valerie Carlsen", filed July 1, 2002.
  4. Notice of Motion No. M-65743, dated August 27, 2002, and filed September 3, 2002.
  5. Affidavit of Jose Rivera, in support of motion, sworn to August 27, 2002.
  6. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated September 19, 2002, and filed September 23, 2002.
  7. Notice of Motion No. M-65750, dated August 29, 2002, and filed September 5, 2002.
  8. Affidavit of Jose Rivera, in support of motion, sworn to August 29, 2002.
  9. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated September 19, 2002, and filed September 23, 2002.
Motion No. M-65743

Claimant previously served the State with a discovery demand entitled "Claimant's Interrogatories Directed To: Mrs. Valerie Carlsen". It appears the State responded to said demand with some objections, although said response is not contained in the Court's file. Claimant seeks permission to revise said Demand to satisfy the State's objections. Quite simply, Claimant need not seek permission from the Court for this relief. CPLR 3122 (c) states that answers to interrogatories may only be amended or supplemented by court order. Here, Claimant is not providing answers, but rather is asking the questions. As such, Claimant's motion for permission to amend his interrogatories is denied.


Motion No. M-65750

Claimant also moves for an order striking the State's third, fourth, fifth and sixth affirmative defenses contained in the State's Verified Answer. CPLR 3024 (b) states that "[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." With respect to the State's Third Affirmative Defense, clearly the State's defense should have referred to an "incident" rather than an "accident". Such a typographical error does not rise to the level of scandalous or prejudicial matters as said defense is standard in all other respects. Additionally, allegations of culpable conduct on the part of a litigant are properly included as an affirmative defense. The State's Fourth and Fifth Affirmative Defenses relating to issues of privilege, immunity and good faith, are all proper. Affirmative defenses are not dispositive of a claim and are merely assertions of a party, absent prejudice, that will not be stricken. (CPLR 3024; 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 3018.14). There is no prejudice to Claimant by allowing these affirmative defenses to remain in the State's Verified Answer. The State's Sixth Affirmative Defense states "that to the extent the claim alleges civil rights violations the Court lacks jurisdiction over the claim and fails to state a cause of action against the State of New York." (State's Verified Answer, ¶ 10). Claimant states that he is not attempting to assert a civil rights cause of action warranting the dismissal of said Defense. However, despite Claimant's representation, the Court will err on the side of caution and allow the State's Affirmative Defense to remain since there is no resulting prejudice.


Accordingly, IT IS ORDERED, that Claimant's motions, Motion Nos. M-65743 and M-65750, are DENIED.



October 9, 2002
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims