New York State Court of Claims

New York State Court of Claims

FELIX v. THE STATE OF NEW YORK, #2003-032-126, Claim No. 107971, Motion No. M-67277


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:
Tito Felix, pro se
Defendant's attorney:
Hon. Eliot Spitzer, Esq., NYS Attorney General
By: Dennis M. Acton, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
December 29, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This claim, which was filed on July 3, 2003, alleges that on April 9, 2003, claimant was assaulted by several correction officers at Franklin Correctional Facility. In its answer, the State raised three affirmative defenses: 1) claimant's culpable conduct; 2) privilege and immunity; and 3) "arbitration and award, collateral estoppel and res judicata." Claimant has now moved to strike each of those defenses.

Affirmative defenses must be set forth when there are matters which, if not pleaded, "would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading" (CPLR 3018). Parties on whom an opponent's affirmative defenses are served may simply accept that knowledge and plan their case accordingly; move for a more particular statement if the allegations are confused or unclear (CPLR 3024 [a]); serve a demand for a bill of particulars with respect to the defense (CPLR 3041); or move to dismiss or strike a defense on the ground that "it is not stated or has no merit" (CPLR 3211 [b]). In deciding such a motion, the court must draw all reasonable inferences in support of the defense and assume the truth of defendant's allegations, and the motion should not be granted if there is any doubt as to the availability or applicability of a defense (see, generally, Krantz v Garmise, 13 AD2d 426 [1st Dept 1961]; Ruffing ex rel. Calton v Union Carbide Corp., 186 Misc 2d 679 [NY Sup 2000]). The moving party bears the initial burden of challenging the factual basis of the defense, and typically this is met by use of an affidavit based on personal knowledge or other evidentiary proof (Arriaga v Michael Laub Co., 233 AD2d 244 [1st Dept 1996]). If the movant succeeds, the burden of proof then shifts to the party asserting the defense, who must come forth with proof of a triable issue of fact (Becker v Elm Air Conditioning Co., 143 AD2d 965 [2d Dept 1988]). The party asserting the defense may, however, argue that further discovery is needed to produce such facts or that resolving the issue is premature (id., CPLR 3211 [d]).

In the instant case, counsel for defendant has, in fact, indicated that more time and discovery is needed before the facts underlying each of the defenses can be provided. Presumably if it develops that there are no such facts, the defenses will be withdrawn. In its present posture, and particularly in light of the comparative newness of this claim, the better course of action here would be for claimant to serve defendant with a demand for a bill of particulars relating to the affirmative defense. If the State fails to provide any particulars in response to such demand, it will be precluded from introducing proof of the defenses.

Claimant's motion is denied as premature.

December 29, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on claiamnt's motion to strike defendant's affirmative defenses:

1. Notice of Motion and Supporting Affidavit of Tito Felix, pro se

2. Affirmation in Opposition of Dennis M. Acton, Esq., AAG

Filed papers: Claim; Answer