Filed Papers: Verified Claim, filed December 21, 2001; Verified Answer
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withdrawn its fourth (failure to verify the Claim) and sixth ( improper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.