New York State Court of Claims

New York State Court of Claims

VIRGIL v. THE STATE OF NEW YORK, #2003-019-552, Claim No. 105531, Motion No. M-66962


Synopsis


Claimant's motion for an order striking the State's first, second (Court of Claims § 10) and sixth (verification) affirmative defenses pursuant to CPLR 3024 is granted.

Case Information

UID:
2003-019-552
Claimant(s):
MELVIN VIRGIL
Claimant short name:
VIRGIL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105531
Motion number(s):
M-66962
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
MELVIN VIRGIL, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
July 23, 2003
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, moves for an order striking the State's first, second and sixth affirmative defenses pursuant to CPLR 3024. The State of New York (hereinafter "State") does not oppose the motion.


The Court has considered the following papers in connection with this motion:
  1. Claim, filed January 28, 2002.
  2. Verified Answer, filed February 25, 2002.
  3. Notice of Motion No. M-66962, undated, and filed June 16, 2003.
  4. Affidavit of Melvin Virgil, in support of motion, sworn to June 11, 2003.
  5. Affirmation of Joseph F. Romani, AAG, in response to motion, dated July 1, 2003, and filed July 3, 2003.
This underlying claim arose when claimant allegedly injured himself after a slip and fall on wet stairs at Southport Correctional Facility on February 26, 2001. Claimant alleges that a Notice of Intention was served on the State on May 29, 2001. The Claim was filed in the Office of the Clerk on January 28, 2002 and apparently served on the Attorney General's office on or about January 22, 2002 by certified mail, return receipt requested. The State filed a Verified Answer on February 25, 2002 containing various affirmative defenses.


By way of this motion, Claimant seeks an order striking the State's first and second affirmative defense (Court of Claims Act § 10), and the sixth affirmative defense (verification). The State's responsive papers to this motion concede that both of these affirmative defenses are legally insufficient and were improperly pled.


Consequently, for the reasons stated above, it is ORDERED that Claimant's motion, Motion No. M-66962 is GRANTED and the State's first, second and sixth affirmative defenses are hereby stricken from the State's Verified Answer.


July 23, 2003
Binghamton, New York

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