New York State Court of Claims

New York State Court of Claims

KELLEY v. THE STATE OF NEW YORK, #2003-019-530, Claim No. 104438, Motion No. M-66442


Synopsis


Claimant's motion for permission to file a reply to the Attorney General's Motion to Dismiss is denied.

Case Information

UID:
2003-019-530
Claimant(s):
ANDRE KELLEY
Claimant short name:
KELLEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104438
Motion number(s):
M-66442
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
ANDRE KELLEY, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Carol A. Cocchiola, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
March 25, 2003
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, appearing pro se, moves for "an order granting him permission to file a reply to the Attorney General's Motion to Dismiss the Claim." (Claimant's Notice of Motion). 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 June 18, 2001.
  2. DECISION & ORDER, Lebous, J., Claim No. 104438, Motion Nos. M-65133, M-65290, M-65300 & CM-65245, filed September 11, 2002.
  3. Amended Claim, filed October 28, 2002.
  4. Verified Answer to Amended Claim, filed January 6, 2003.
  5. Notice of Motion No. M-66442, dated February 18, 2003, and filed February 24, 2003.
  6. "Affidavit" of Andre Kelley, in support of motion, dated February 18, 2003, with attachments.
  7. Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated March 14, 2003, and filed March 17, 2003.
To the extent that Claimant requests permission to file a reply to the State's motion to dismiss it is denied inasmuch as the State never filed such a motion, but rather merely recited in its Verified Answer that the Claim should be dismissed, as is standard practice. (Affirmation of Carol A. Cocchiola, AAG, ¶ 1). Furthermore, the State did not assert any counterclaims in its Verified Answer so no reply is authorized. (22 NYCRR 206.7 [a]). Additionally, the Court agrees with the State that no further answer is required to Claimant's attachment that he has entitled "Tort Claim".


Also, Claimant's objections to the State's affirmative defenses are also without merit. CPLR 3024 (b) states that "[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." The affirmative defenses at issue here are standard and, as such, are not improper. The State properly included these affirmative defenses in its Verified Answer. (CPLR 3018 [b]). Finally, Claimant's request for the appointment of an expert under the federal rules of evidence is totally without merit and is denied.


Parenthetically, this Court notes that it previously issued a Decision & Order in this matter as follows: granting in part and denying in part the State's cross-motion to dismiss; denying as premature Claimant's motion seeking permission to amend his claim; denying as moot Claimant's motion for permission to treat the Notice of Intention like a claim pursuant to CCA 10 (8); and denying Claimant's motion for poor person status. (Kelley v State of New York, Ct Cl, July 11, 2002, Claim No. 104438, Motion Nos. M-65133, M-65290, M-65300 & CM-65245 [UID No. 2002-019-547]).[1] Frankly, it is unclear to this Court, based on this record, whether Claimant's filing and service of this Amended Claim are in contradiction to said Decision & Order and CPLR 3025. As such, the Court will not address that issue unless and until it is raised by the State on a more developed record.


Accordingly, for the reasons stated above, it is ORDERED that Claimant's motion for permission to file a reply, Motion No. M-66442, is DENIED.



March 25, 2003
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]
Unreported decisions from the Court of Claims are available via the Internet at http://nyscourtofclaims.state.ny.us/decision.htm.