New York State Court of Claims

New York State Court of Claims

McCULLOUGH v. THE STATE OF NEW YORK, #2003-019-519, Claim No. 103892, Motion No. M-66363


Claimant's motion for summary judgment is denied; the State's answer is deemed amended to include affirmative defense of release; and Claim is dismissed based upon defense of release.

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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 3, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for summary judgment pursuant to CPLR 3212. The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed February 28, 2001.
  2. Verified Answer, filed March 29, 2001.
  3. Notice of Motion No. M-66363, undated, and filed February 6, 2003.
  4. "Affidavit of Facts", of David McCullough, in support of motion, dated January 24, 2003, with attached exhibits.
  5. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated February 12, 2003, and filed February 14, 2003, with attached exhibits.
The underlying facts of this Claim are essentially undisputed. On September 11, 2000, Claimant alleges he returned to Elmira Correctional Facility after a month absence for a court appearance and discovered that his typewriter was missing.[1] Claimant submitted an Inmate Claim Form by which he requested reimbursement of $125.00. (Claim, Exhibit A). The grievance was approved on December 11, 2000, but only for $35.00. Claimant then took two separate and seemingly incongruous paths. On December 13, 2000, Claimant signed a release accepting the $35.00 in full satisfaction of all claims (hereinafter "Release"). (Claim, Exhibit B). On that same date, however, Claimant also submitted an appeal asserting that the reimbursement amount was too small. Thereafter, on December 19, 2000, Claimant sent a letter to the Inmate Claims department advising he "[w]ithdraws the acceptance of the reimbursement payment of $35.00..." (Claim, Exhibit C). On January 9, 2001, the State deposited $35.00 in Claimant's inmate account. Claimant never received a formal response to his appeal.[2]

Claimant filed and served this Claim seeking to recoup the difference in value of his typewriter as between the $35.00 settlement and its alleged value.[3] The State filed a Verified Answer on March 29, 2001, containing various affirmative defenses with one notable exception, namely the affirmative defense of release.[4] As such, in view of the presence of said Release but in recognition of the fact that the State did not plead the affirmative defense of release, the Court must initially address whether summary judgment may be granted on an unpleaded affirmative defense.

Generally, an affirmative defense must be raised by way of a CPLR 3211 motion or by affirmative defense in an answer or else it will be deemed waived. (CPLR 3018 [b]). However, it is well-settled that "[a]n unpleaded defense may not only be invoked to defeat a motion for summary judgment, but in the absence of surprise or prejudice to, or objection by, the opposing party, it may also serve as the basis for an affirmative grant of such relief [citations omitted]." (Allen v Matthews, 266 AD2d 782, 784). Here, the unpleaded affirmative defense of release cannot possibly be viewed as a surprise to Claimant considering he was well aware of this specific Release since it was a document executed by him and he acknowledges its existence in his papers.[5] Nor can the Court identify any prejudice to Claimant by addressing this unpleaded defense at this juncture. The alternative, of course, is to deny Claimant's motion without prejudice to the State bringing on a motion to amend its answer and thereafter a motion for summary judgment based on said amendment which would provide nothing other than a lapse of time. (Rogoff v San Juan Racing Assn., 77 AD2d 831, 832, affd 54 NY2d 883 ["allowing this defense in such circumstances comports with the practice advocated in the commentary accompanying this statute. (See Seigel [sic], Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:11."]). In the interest of judicial economy, the Court finds that nothing would be gained by requiring such steps and that the more efficient course is to deem the State's answer be amended to reflect the addition of the affirmative defense of release, namely the Release dated and signed December 13, 2000.

Thus, the Court will address the merits of the affirmative defense of release. This Claim alleges that this Release should be "voidable under the principle of fairness" (Claim, ¶ 8), while Claimant's moving papers acknowledge he "[i]nitially agreed to the offer of $35.00. However, I rejected that offer 6 days later...." (Claimant's unsworn "Affidavit", p 1). It has been frequently recited that a release will not be treated lightly. In fact, the Court of Appeals has stated:
[i]t is a jural act of high significance without which the settlement of disputes would be rendered all but impossible. It should never be converted into a starting point for renewed litigation except under circumstances and under rules which would render any other result a grave injustice. It is for this reason that the traditional bases for setting aside written agreements, namely, duress, illegality, fraud, or mutual mistake, must be established or else the release stands.

(Mangini v McClurg, 24 NY2d 556, 563).

The Release signed here by Claimant is a form general release which states that the State is released "[f]rom all claims, demands and liability of every kind and nature, legal or equitable, occasioned by or arising out of the facts in the foregoing claim...." (Claim, Exhibit B). There is nothing limited about this Release or equivocal about its language, and Claimant cannot now argue that the consideration paid in exchange therefor was inadequate. (Touloumis v Chalem, 156 AD2d 230, 232; Pratt Plumbing & Heating v Mastropole, 68 AD2d 973). In sum, this Court finds that this Claim is barred by Claimant's execution of said Release.

Accordingly, in light of the foregoing, it is ordered that Claimant's motion for summary judgment, Motion No. M-66363, is DENIED and upon the Court's own motion, Claim No. 103892 is DISMISSED.

March 3, 2003
Binghamton, New York

Judge of the Court of Claims

[1]This Claim, No. 103892, relates to a "Sharp" typewriter and apparently is different from another recently dismissed claim by this same Claimant relating to a "Smith Corona display 1000" typewriter. (McCullough v State of New York, Ct Cl, February 4, 2003, Lebous, J., Claim No. 106814, Motion No. M-66098).
[2]For purposes of timeliness under CCA 10 (9), the Court finds that the administrative remedies were exhausted as of the date of the purported settlement, namely December 13, 2000. Obviously, due to the execution of the release, the appeal process was deemed abandoned by the State and no decision on the appeal was or will be forthcoming. As such, the Court will deem this Claim timely under CCA 10 (9).
[3]Claimant has asserted different amounts representing the difference between the settlement amount and the typewriter's value including $125.00 on his Inmate Grievance form; $165.00 in this Claim; and $170.00 in this motion.
[4]The State does reference the settlement check in one of its general denials, (Verified Answer, ¶ 2), but does not specifically plead release as an affirmative defense.
[5]By way of comparison, surprise would be present in a situation in which a party is asserting the defense of infancy, often a factor previously unknown to the opposing party.