New York State Court of Claims

New York State Court of Claims

VASS v. THE STATE OF NEW YORK, #2003-031-030, Claim No. 106875, Motion No. M-66414


Synopsis


Claimant's motion to strike several of Defendant's affirmative defenses is granted, in part.

Case Information

UID:
2003-031-030
Claimant(s):
CHRISTOPHER LUTHER VASS
Claimant short name:
VASS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106875
Motion number(s):
M-66414
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
CHRISTOPHER LUTHER VASS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 24, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 3, were read on motion by Claimant for an order striking certain affirmative defenses asserted by Defendant:
1. Claimant's Notice of Motion, filed February 18, 2003;
2. Affirmation of James L. Gelormini, Esq., dated February 26, 2003, with attached exhibit;
3. Filed documents: Claim and Answer. Claimant brings this motion requesting that the Court strike certain affirmative defenses set forth in Defendant's answer. In his underlying claim, Claimant asserts that, on March 25, 2002, while an inmate confined at Wyoming Correctional Facility, he slipped and fell on an icy sidewalk within the facility. He also alleges medical malpractice/negligence relating to the medical treatment he received for the injuries sustained in the fall.

With this motion, Claimant requests that the Court strike Defendant's first, second, fourth, and sixth affirmative defenses. These defenses assert respectively that: (1) the Claimant's own culpable conduct contributed to his injuries; (2) the culpable conduct of a third party contributed to Claimant's injuries; (3) Defendant is entitled to a set-off for any payments to Claimant from collateral sources; and (4) the claim was not served or filed within 90 days as required by Court of Claims Act §§ 10(3) and/or 10(3-b).

In support of his motion, Claimant offers no indication as to why these affirmative defenses are inappropriate and should be stricken. Rather, he merely states that, in light of Defendant's interrogatory responses relating to these defenses, Defendant had not identified sufficient support for these defenses.

In its opposition to this motion, Defendant has agreed to withdraw its sixth affirmative defense relating to timeliness of the claim. Defendant maintains that the other three affirmative defenses, however, are validly asserted.

The Claimant, as the moving party, bears the burden of coming forward with sufficient proof to demonstrate that the defenses at issue cannot be maintained (Arquette v State of New York, 190 Misc 2d 676). A court should not strike a defense when material issues of fact remain unresolved (Matter of Harrison v State of New York, 262 AD2d 833; Connelly v Warner, 248 AD2d 941). Claimant has failed to come forward with any proof, let alone sufficient proof, that the remaining three affirmative defenses cannot be maintained. Claimant's interpretation of Defendant's answers to interrogatories notwithstanding, there is nothing contained in Defendant's responses that would indicate that these affirmative defenses were not properly asserted.

Additionally, although a party may move, pursuant to CPLR 3024 (b) "to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading," affirmative defenses are not dispositive of a claim and are merely assertions of a party which, absent prejudice, will not be stricken (5 Weinstein-Korn-Miller, NY Civ Prac., ¶ 3018.14). I find that none of these affirmative defenses are prejudicial or scandalous in any respect. The State properly asserted these affirmative defenses in its Verified Answer.

Therefore, it is hereby,

ORDERED, that Claimant's motion is granted to the extent that Defendant's sixth affirmative defense is hereby stricken. Claimant's motion is in all other respects denied.

June 24, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims