New York State Court of Claims

New York State Court of Claims

ELLIS v. THE STATE OF NEW YORK, #2002-028-024, Claim No. 105380, Motion No. M-64714


Claimant's motion to dismiss affirmative defenses 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):

Claimant's attorney:
Defendant's attorney:
BY: Michael C. Rizzo, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 22, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's application pursuant to CPLR 3211(b) to strike certain affirmative defenses

  1. Notice of Motion and Supporting Affidavit of Rayford Ellis, filed February 13, 2002, with annexed Exhibit A (Ellis Affidavit); and
  1. Affirmation in Opposition of AAG Michael C. Rizzo filed March 15, 2002 (Rizzo Affirmation).
Filed Papers: Verified Claim, filed December 21, 2001; Verified Answer filed

January 15, 2002.

Claimant, an inmate at the Clinton Correctional Facility Annex, alleges that on or about September 4, 2001 while working on the maintenance crew he cut his right shin on a piece of metal protruding from a wall. The wound required seven stitches to close and Claimant relied on crutches for a month and a cane thereafter. Claimant asserts the State was negligent in failing to adequately maintain the facility grounds and in failing to provide a safe workplace.

The State answered the Claim and asserted six affirmative defenses which Claimant now seeks to have dismissed. In response to the motion, the State has withdrawn its fourth (failure to verify the Claim) and sixth ( improper attachment of exhibits to the Claim) affirmative defenses (Rizzo Affidavit, ¶¶ 4 and 6).

A motion to dismiss a defense must be made on the ground that a defense is not stated or that it has no merit (CPLR 3211[b]; Winter v Leigh-Mannell, 51 AD2d 1012). The movant bears the burden of coming forward with sufficient proof to demonstrate that the defense cannot be maintained (Arquette v The State of New York, New York State Thruway Authority and New York State Canal Corporation, NYS2d , 2001 WL 1820020, [Ct Cl, Collins, J.], Claim No. 102374, Motion Nos. M-63135, CM-63219, UID #2001-013-017, [September 20, 2001]). It is well settled that "[o]n 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 submitted proof" (Capital Tel. Company v Motorola Communications & Elecs., 208 AD2d 1150) and it is error for a court to strike a defense when material issues of fact remain unresolved (Harrison v State of New York, 262 AD2d 833; Connelly v Warner, 248 AD2d 941). "If there is doubt as to the availability of a defense, it should not be dismissed" (Duboff v Board of Higher Educ. of City of New York, 34 AD2d 824)

Applying the foregoing principles, at this early stage of litigation, Claimant's assertions that neither he nor a third party contributed to this accident (Ellis Affidavit, ¶¶ 3 and 4), are insufficient to demonstrate that the first and second affirmative defenses - alleging Claimant's culpable conduct and the culpable conduct of a third party, respectively, are insufficiently pleaded or that there are no triable issues of fact (Peters v Factory Mut. Liability Ins. Co. of America, 31 AD2d 773, 774). The Court reaches a similar conclusion with regard to the third and fifth defenses; assumption of risk and immunity, respectively (see, Hall v State of New York, [Ct Cl, Fitzpatrick, J.] Claim No. 100475, Motion No. M-60233; UID #2000-018-009, [May 1, 2000]).

Although Defendant has not asserted as an affirmative defense that the Claim fails to state a cause of action upon which relief may be granted, Claimant has taken issue with Defendant's request for dismissal set forth in the "wherefore" clause of its answer (Ellis Affidavit, ¶ 9). The Court notes that had this request for dismissal been pleaded as an affirmative defense, it is harmless surplusage and a motion to strike is unnecessary and would be denied (see, Pump v Anchor Motor Freight, Inc., 138 AD2d 849.)

Accordingly, based upon the foregoing, Claimant's motion is GRANTED only to the extent the fourth and sixth affirmative defenses are hereby stricken and DENIED in all other respects.

April 22, 2002
Albany, New York

Judge of the Court of Claims