New York State Court of Claims

New York State Court of Claims

CHARLEMAGNE v. THE STATE OF NEW YORK, #2003-016-031, Claim No. 107201, Motion No. M-66424


Synopsis



Case Information

UID:
2003-016-031
Claimant(s):
ESTEBAN CHARLEMAGNE
Claimant short name:
CHARLEMAGNE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107201
Motion number(s):
M-66424
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Esteban Charlemagne
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Joseph F. Romani, AAG
Third-party defendant's attorney:

Signature date:
April 9, 2003
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is claimant's motion to strike defendant's answer. In the underlying claim, Mr. Charlemagne alleges that because of defendant's negligence, he slipped and fell in a shower at Woodbourne Correctional Facility. He also complains of the medical treatment he received thereafter. As to defendant's answers to the numbered paragraphs of the claim, Charlemagne has provided no basis for striking such. As to defendant's affirmative defenses, they are: (1) lack of jurisdiction because of failure to file the claim; (2) failure to state a cause of action against the State; (3) and (4) failure to comply with the particularity requirements of §11 of the Court of Claims Act; (5) privileged discretionary acts; (6) culpable conduct including assumption of risk by claimant; and (7) negligence of third parties.

With regard to the first affirmative defense, defendant states that at the time it served and filed its answer, it was under the impression that claimant had failed to file his claim. Defendant further states that it is now aware that claimant did in fact file the claim on January 15, 2003, and it thus withdraws the first affirmative defense. See the February 19, 2003 affirmation of Joseph F. Romani.

With regard to the remaining affirmative defenses, they are not dispositive of Charlemagne's claim. Like the allegations in the claim itself, they are merely assertions made by a party. No prejudice has been identified by claimant which would warrant striking such affirmative defenses. See, e.g., 5 Weinstein-Korn-Miller, NY Civ Prac ¶3018.14 at 30-410.

Accordingly, having reviewed the parties' submissions[1], IT IS ORDERED that motion no. M-66424 be denied.



April 9, 2003
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]Along with the pleadings, the following were reviewed: claimant's notice of motion with affidavit in support and defendant's affirmation in opposition.