New York State Court of Claims

New York State Court of Claims

SCOTT v. THE STATE OF NEW YORK, #2003-031-037, Claim No. 106990, Motion No. M-66460


Claimant's motion to strike several affirmative defenses asserted in Defendant's answer is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 26, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 4, were read on motion by Claimant for an order striking certain affirmative defenses asserted in Defendant's answer:
1. Claimant's Notice of Motion, filed February 27, 2003;
2. Claimant's Affidavit, sworn to February 24, 2003;
3. Affirmation of Thomas G. Ramsay, Esq., dated March 10, 2003, with attached exhibits;
4. 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, between October 19, 2001 and continuing through the date that the claim was verified on November 13, 2002, Claimant was injured by the medical malpractice/negligence relating to the medical treatment he received from Defendant.

With this motion, Claimant requests that the Court strike Defendant's first, second, third, and fifth affirmative defenses. These defenses assert respectively that: (1) the Claimant's own culpable conduct contributed to his injuries; (2) that the culpable conduct of a third party contributed to Claimant's injuries; (3) that the claim fails to set forth a valid cause of action against Defendant; and (4) that the claim does not sufficiently set forth the time and place that the claim accrued.

In support of his motion, Claimant argues that each of these identified affirmative defenses is legally insufficient and should be stricken. Claimant argues that, because he is an inmate and, therefore, under the constant control of Defendant, the first and second affirmative defenses regarding the culpable conduct of the claimant or others cannot be sustained. Claimant also maintains that the State is legally required to provide him with adequate medical care. Claimant argues that, because he has alleged that he was not provided with adequate medical care, either through neglect or medical malpractice, he has set forth a valid cause of action against the State. Finally, Claimant points out that the claim specifies that his cause of action accrued on October 19, 2001, and continued at least until the date of his verification of the claim, and that the acts complained of occurred at the Wyoming and Attica Correctional Facilities. For this reason, he asserts that he has adequately set forth the time and place of the accrual of the claim.

In its opposition to this motion, Defendant points out that Claimant was treated by outside medical care providers at Wyoming Community Hospital (WCH). As the claim is vague regarding how Claimant was or was not treated, it is quite possible that any injuries he has sustained were the result of treatment he received while at WCH. Defendant also maintains that the claim is so vague that his only cause of action may, in fact, relate only to the care he received at WCH. Finally, though Claimant does set forth times, dates, and places, he does not indicate any particular event that occurred at any of those locations or at any of those times.

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) and 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 sufficient proof that the subject affirmative defenses cannot be maintained. While his pleading may be strong enough to withstand a motion to dismiss, it is not so strong as to demonstrate that the affirmative defenses are improperly asserted.

Additionally, pursuant to CPLR 3024 (b), "[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." Each of the affirmative defenses at issue are standard and not the slightest bit inflammatory. Affirmative defenses are not dispositive of a claim and are merely assertions of a party which, absent prejudice, should not be stricken. (CPLR 3024; 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 3018.14). I find that these affirmative defenses are not 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 to strike the specified affirmative defenses is denied.

June 26, 2003
Rochester, New York

Judge of the Court of Claims