New York State Court of Claims

New York State Court of Claims

CAMPBELL v. STATE OF NEW YORK, #2003-015-369, Claim No. 105740, Motion No. M-67434


Pro se claimant who submitted an unsworn affidavit failed to meet his burden of proof in motion seeking to dismiss stated defenses and for summary judgment. Motion is denied.

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:
Alan Campbell, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 25, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion to strike the defendant's answer and for summary judgment is denied. The instant claim was filed on March 13, 2002 and an amended claim was filed on May 15, 2002 seeking $1,022,908.90 in damages for various wrongs allegedly perpetrated against the claimant by Department of Correctional Services (DOCS) personnel at three separate correctional facilities (Fishkill, Oneida and Marcy) during the period from May 31, 2001 to January 17, 2002. The causes of action which are not separately stated and numbered in either the original or amended claim include the loss of certain personal property; personal injury; unlawful excessive confinement in a special housing unit (SHU) on two occasions; and reimbursement of FOIL expenses. Claimant now moves for an order striking the defendant's answer and awarding him summary judgment on the claim.

In its answer the defendant alleges the following affirmative defenses: (1) The claim is defective as it fails to set forth specific allegations in plain and concise statements in consecutively numbered paragraphs; (2) claimant failed to submit proof that he exhausted all administrative remedies prior to filing his inmate personal property loss claim; (3) the actions of the defendant were judicially or quasi-judicially privileged and the defendant is therefore immune from liability; (4) the defendant is not liable for loss of any property which claimant did not own or rightfully possess under DOCS directives; (5) the defendant is not liable for damages caused by claimant's own culpable conduct; (6) the defendant is not responsible for damages caused by the superseding intervention of persons or causes independent of the State, beyond State control or by persons acting outside the scope of their official duties or employment; (7) the State's liability will be reduced by any payment claimant has accepted or will accept in an administrative claim for losses alleged in the claim; (8) the Court lacks equity jurisdiction to overturn claimant's December 17, 2001 criminal conviction.

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 Lehigh-Mannell, 51 AD2d 1012). It is error for a court to strike a defense where a material issue of fact remains unresolved (Matter of Harrison v State of New York, 262 AD2d 833; Connelly v Warner, 248 AD2d 941) and it is the movant's burden to present sufficient proof demonstrating that a defense cannot be maintained (Weinstein-Korn-Miller CPLR Manual 2d ed., Section 21.05; City of New York v Mills, 1996 WL 882642 [NY City Civ. Ct. 1996]). It has been noted that "[a]s subdivision (a) (7) [CPLR 3211] does with the motion to dismiss a cause of action, so subdivision (b) does with a defense: it allows the attack to challenge the defense as deficient on its face - i.e., argue that it fails even to articulate a defense - or go behind a perfectly pleaded defense to test its merit. . . . So, when the defense is attacked on its face, the truth of its allegations will be assumed; when the attack goes beyond, and with affidavits and other extrinsic proof aims at the defense's merit, all reasonable inferences are drawn in favor of the defense" (Siegel, NY Practice, § 269 at 428 [3d ed]).

Here claimant offers no such proof and the allegations set forth in his unsworn affidavit are mere statements of disagreement with the facially valid defenses interposed by the defendant (see, Davidson v State of New York, Ct Cl, December 23, 2002 [Claim No. 105260, Motion Nos. M-65119, M-65265, M-65439] Sise, J., UID # 2002-028-074, unreported). As a result the claimant has not met his burden on the motion to strike the defendant's answer containing the above stated defenses (Duboff v Board of Higher Educ. of City of N. Y., 34 AD2d 824; Pellegrino v Millard Fillmore Hosp., 140 AD2d 954); Arquette v State of New York, 190 Misc 2d 676).

Accordingly, the motion to strike the defendant's answer is denied.

The rules applicable to the determination of a motion for summary judgment were clearly stated by the Court of Appeals in Alvarez v Prospect Hosp., 68 NY2d 320, 324:
As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, supra, at p 562).
The proponent of a summary judgment motion may only meet its initial burden through the submission of evidentiary proof in admissible form (Rifenburgh v Wilczek, 2002 WL 826797 [N.Y.A.D. 3 Dept]).

In support of the motion claimant has submitted only a notice of motion and a document purporting to be an affidavit which is neither in affidavit form nor sworn to before a notary public. Moreover, even if the document were in admissible form its allegations fall far short of demonstrating claimant's prima facie entitlement to judgment as a matter of law on the claim's numerous causes of action.

Accordingly, the instant motion must be and hereby is denied.

November 25, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated September 18, 2003;
  2. Unsworn, undated "affidavit" of Alan Campbell;
  3. Affirmation of Kathleen M. Resnick dated October 6, 2003 with exhibits.