New York State Court of Claims

New York State Court of Claims

SPIRLES v. THE STATE OF NEW YORK, #2003-019-576, Claim No. 108187, Motion No. M-67685


Synopsis


Case Information

UID:
2003-019-576
Claimant(s):
MICHAEL SPIRLES
Claimant short name:
SPIRLES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108187
Motion number(s):
M-67685
Cross-motion number(s):

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

Signature date:
December 18, 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 affirmative defenses contained in the defendant's Verified Answer. The defendant State of New York (hereinafter "State") opposes said motion.

This claim alleges "negligence and malpractice" by the State relative to the care and treatment of claimant's right eye up to and through July 2003 during his incarceration at Southport Correctional Facility. (Claim, ¶ 2). This claim was filed with the Clerk of the Court on August 25, 2003 and served on the State on that same date by certified mail, return receipt requested. The State's Verified Answer was filed October 3, 2003 and contains three affirmative defenses, namely claimant's own culpable conduct; the culpable conduct of a third party; and Public Health Law § 2805-d (4). By way of this motion, claimant seeks an order "denying defendant's motion and to strike affirmative defense." (Notice of Motion).


Initially, the court notes that the State's request for dismissal in the "wherefore" clause of its Verified Answer does not equate to a motion to dismiss. With respect to claimant's motion to strike one of the State's affirmative defenses, it is well settled that "[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." (CPLR 3024 [b]). However, affirmative defenses are not dispositive of a claim and are merely assertions of a party, absent prejudice, that will not be stricken. (CPLR 3024; 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 3018.14). Here, claimant only references paragraphs 6 and 7 of the State's Verified Answer containing the first affirmative defense relative to claimant's own culpable conduct, if any. The State's first affirmative defense is neither prejudicial or scandalous in any respect whatsoever. To the extent claimant's motion may be read to attack the remaining affirmative defenses the same holds true for those defenses as well. In short, the State properly included all these affirmative defenses in its Verified Answer. Claimant's motion is denied in its entirety.


Accordingly, for the reasons stated above, it is ORDERED that claimant's motion, Motion No. M-67685, is DENIED.


December 18, 2003
Binghamton, New York

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



The Court has considered the following papers in connection with this motion:
  1. Claim, filed August 25, 2003.
  2. Verified Answer, filed October 3, 2003.
  3. Notice of Motion No. M-67685, dated August 13, 2003, and filed November 19, 2003.
  4. Affidavit of Michael Spirles, in support of motion, unsworn to, and dated August 13, 2003.
  5. Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated December 8, 2003, and filed December 10, 2003.