New York State Court of Claims

New York State Court of Claims

DE FREITAS v. THE STATE OF NEW YORK, #2003-030-550, Claim No. 104613, Motion No. M-66618


Synopsis


Pro se inmate's motion to dismiss affirmative defenses denied.

Case Information

UID:
2003-030-550
Claimant(s):
MIGUEL DE FREITAS
Claimant short name:
DE FREITAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104613
Motion number(s):
M-66618
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
MIGUEL DE FREITAS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
July 9, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 5 were read on Claimant's motion, brought pursuant


to Civil Practice Law and Rules §3211(b), to dismiss the Defendant's affirmative defenses:

1,2 Notice of Motion, Affidavit in Support by Miguel De Freitas, Claimant, and accompanying exhibits

  1. Affirmation in Response of Dewey Lee, Assistant Attorney General
4,5 Filed Papers: Verified Claim, Verified Answer

After carefully considering the papers submitted, and the applicable law, the motion is disposed of as follows:

Miguel De Freitas, the Claimant herein, alleges in Claim Number 104613 that he was injured while incarcerated at Green Haven Correctional Facility because of the Defendant's negligence in failing to properly maintain a security window which struck him; that Defendant's agents failed to provide him with adequate medical treatment; that he was subject to cruel and unusual punishment in violation of the New York State Constitution; and that Defendant's agents were improperly trained. In its Answer, the Defendant interposed a general denial, as well as the affirmative defenses of contributory negligence, assumption of risk, failure to exhaust administrative remedies; as well as jurisdictional defenses.

In Defendant's Bill of Particulars filed June 20, 2002, and furnished pursuant to Claimant's request, Defendant indicates that the defense with respect to failure to exhaust administrative remedies is withdrawn. In papers filed in response to the present motion, Defendant indicates that the affirmative defenses of contributory negligence and assumption of risk are also withdrawn.

An affirmative defense must be pled so as not to "surprise" the adverse party [See, Civil Practice Law and Rules §3018(b)], and must be proven, in any case, by the defendant. As noted by Claimant, Claimant is entitled to the particulars of an affirmative defense upon proper demand [See, Civil Practice Law and Rules §3041], and may move for appropriate penalties upon a failure to comply with a proper demand. [See, Civil Practice Law and Rules §§3042, 3126].

In this case, however, Defendant has withdrawn the affirmative defenses of contributory negligence and assumption of risk, rendering the present application moot.

Accordingly, Claimant's motion to dismiss the affirmative defenses specified is in all respects denied as moot.

July 9, 2003
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims