New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2002-028-509, Claim No. 106694, Motion No. M-66052


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:
JAMES B. BROWN, pro se
Defendant's attorney:

Saul Aronson, Esq.
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 4, 2003

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 and to strike Defendant's answer:

  1. Notice of Motion and Supporting Affidavit of James B. Brown, filed November 15, 2002 (Brown Affidavit); and attachments.
  1. Affirmation in Opposition of AAG Saul Aronson filed December 17, 2002 with annexed Exhibit A (Aronson Affirmation).
  1. Letter of James B. Brown received December 23, 2002.
Filed Papers: Verified Claim, filed September 26, 2002; Verified Answer filed

October 21, 2002.

The following facts are gleaned from the Claim. Claimant alleges that on or about March 14, 2001 he was falsely imprisoned when Claimant's parole officer, armed with a parole violation warrant, arrested him. Following a hearing, Claimant was returned to prison. Claimant unsuccessfully sought reversal of his parole revocation, which apparently culminated in a decision of the County Court, dated July 26, 2002 dismissing Claimant's petition for a writ of habeas corpus.

The State answered the Claim and asserted sixteen affirmative defenses and the Claimant has moved to strike each of the affirmative defenses as well as certain of Defendant's responses to the Claim (Brown Affidavit ¶ 3 [1] and [2]).

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 State of New York, 190 Misc 2d 676). 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 are insufficient to demonstrate that the affirmative defenses are insufficiently pleaded or that there are no triable issues of fact (see, e.g. Peters v Factory Mut. Liability Ins. Co. of America, 31 AD2d 773, 774 [culpable conduct or third party conduct]; Hall v State of New York, [Ct Cl, Fitzpatrick, J.] Claim No. 100475, Motion No. M-60233; UID #2000-018-009, [May 1, 2000] [immunity and assumption of risk]; Martinez v City of Schenectady, 276 AD2d 993 [limited availability of constitutional tort] see also, Pump v Anchor Motor Freight, Inc., 138 AD2d 849 [failure to state a claim defense is harmless surplusage and a motion to strike is unnecessary]). The Court is likewise in no position to address the questions concerning res judicata or collateral estoppel stemming from Claimant's "habeas corpus proceeding"as none of those papers have been provided to the Court on this motion. Quite simply, at this stage of the litigation and on this record, Defendant's answer is entitled to the same benefit of the doubt the Claim would be afforded (see, CPLR 3211); and Claimant's motion merely represents his disagreement with those contentions.

Accordingly, based upon the foregoing, Claimant's motion is DENIED.

March 4, 2003
Albany, New York

Judge of the Court of Claims