New York State Court of Claims

New York State Court of Claims

LARKINS v. THE STATE OF NEW YORK , #2003-030-553, Claim No. 106697, Motion No. M-66633


Synopsis


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

Case Information

UID:
2003-030-553
Claimant(s):
DAVID LARKINS
Claimant short name:
LARKINS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106697
Motion number(s):
M-66633
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
DAVID LARKINS, 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 14, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 5 were read and considered on Claimant's motion to


strike Defendant's affirmative defenses of contributory negligence, assumption of risk and the


defense of a lack of jurisdiction:

1,2 Notice of Motion, Affidavit in Support of Motion to Strike by David F. Larkins, Claimant and accompanying exhibits

3 Affirmation in Opposition by Dewey Lee, Assistant Attorney General and accompanying exhibits

4,5 Filed Papers: Claim, Answer

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

In his Claim, Claimant alleges that Defendant's agents negligently lost or destroyed his personal property while he was an inmate at Green Haven Correctional Facility.

In its Answer, the Defendant indicates it lacks information sufficient to form a belief with respect to the allegations contained in paragraphs 1 through 14 of the Claim and, by way of defenses, Defendant asserts Claimant's own culpable conduct, including contributory negligence and assumption of risk, and a lack of jurisdiction based upon Claimant's failure to both properly and timely serve a Claim [See, Court of Claims Act §§10, 11], all in conformance with the general pleading requirements of Civil Practice Law and Rules §3018(a). The purpose of including any affirmative defense in an answer is to provide adequate notice to Claimant of issues of law or fact which the Defendant will raise at trial or in subsequent motion practice. 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.

In deciding a motion to dismiss a defense, all reasonable inferences are drawn in favor of the defense. See, Siegel, New York Practice, 3d Ed., § 269, p. 428. Since no discovery has been completed on this claim to date, a determination of the merits of these pleaded defenses, which are fact-dependent, is premature.[1]

Accordingly, Claimant's motion to strike Defendant's defenses is in all respects denied.

July 14, 2003
White Plains, New York

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




[1] The Court notes there is no cross-motion to dismiss the claim before the Court .