New York State Court of Claims

New York State Court of Claims

MORINE v. THE STATE OF NEW YORK, #2003-031-094, Claim No. 106757, Motion No. M-67011


Synopsis


Case Information

UID:
2003-031-094
Claimant(s):
FRED MORINE
Claimant short name:
MORINE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106757
Motion number(s):
M-67011
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
FRED MORINE, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 1, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 June 26, 2003;
2. Claimant's Affidavit, sworn to June 23, 2003;
3. Affirmation of Heather R. Rubinstein, Esq., dated August 21, 2003, with attached exhibit;
4. Filed documents: Claim and Answer Claimant brings this motion requesting that the Court strike each affirmative defense set forth in Defendant's answer. In his underlying claim, Claimant asserts that he was illegally confined following a disciplinary hearing which occurred on December 26, 2001. That disciplinary determination was administratively reversed on March 8, 2002.

In support of his motion, Claimant argues that each of the affirmative defenses is legally insufficient and should be stricken. Claimant apparently believes that, because his disciplinary hearing was administratively reversed, the State has lost any immunity it might have had relating to the hearing, as well as any legitimate defense to this action. However, the fact that the disposition from a disciplinary hearing is later reversed does not necessarily remove the matter from the blanket of immunity (Arteaga v State of New York, 72 NY2d 212; Bonacorsa v State of New York, Ct Cl, May 31, 1994 [Claim No. 86522], Bell, J.). Furthermore, though Claimant argues that his notice of intention was properly served, he presents no evidentiary proof that this is the case, and he does not address the Defendant's affirmative defense relating to service of the claim. While Claimant may have properly served his notice of intention to file a claim, and properly filed and served his claim, the court is unable, upon the documents submitted with this motion, to definitively determine that this is the case.

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 (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 each of Defendant's affirmative defenses is denied.

December 1, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims