New York State Court of Claims

New York State Court of Claims

DESULMA v. THE STATE OF NEW YORK, #2004-009-40, Claim No. 108894, Motion No. M-68336


Synopsis


Claimant's motion to dismiss defendant's affirmative defenses of failure to state a cause of action and lack of jurisdiction due to claimant's failure to adequately describe the condition on which the claim was based was granted, but his motion to dismiss the affirmative defense of culpable conduct was denied.

Case Information

UID:
2004-009-40
Claimant(s):
CHRISNER DESULMA
Claimant short name:
DESULMA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108894
Motion number(s):
M-68336
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
CHRISNER DESULMA, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
August 10, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In this motion, claimant seeks an order striking the three affirmative defenses contained in defendant's verified answer.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support 1,2

Correspondence from Assistant Attorney General G. Lawrence Dillon, Esq., to claimant, dated April 14, 2004 3

Correspondence from Claimant to the Clerk of the Court, dated April 28, 2004 4


Filed Papers: Claim, Answer

In its verified answer to this claim, defendant has asserted three affirmative defenses, as follows: failure to state a cause of action (first affirmative defense), failure to include an adequate description of the condition alleged in the claim, with the result that there is no proper claim over which this Court has jurisdiction (second affirmative defense), and that the injuries or damages suffered by claimant were caused in whole or in part by his culpable conduct (third affirmative defense).

The first affirmative defense, failure to state a cause of action, is commonly asserted by counsel for defendants in this Court as an affirmative defense. However, since this claim originated in the Fourth Judicial Department, such a contention is not properly asserted as an affirmative defense (Homestead Dev. Corp. v Ayres, 244 AD2d 928). Accordingly, the first affirmative defense alleged by the defendant must be dismissed.

With regard to the second affirmative defense, defendant asserts that there is no proper claim over which this Court has jurisdiction due to claimant's alleged failure to adequately describe the condition on which this claim is based. This contention is akin to defendant's first affirmative defense alleging a failure to state a cause of action. This affirmative defense, therefore, must also be dismissed.

The third affirmative defense, in which the defendant alleges that the culpable conduct of the claimant contributed in whole, or in part, to his injuries, is an affirmative defense which is specifically defined under CPLR § 3018(b). Since this defense is authorized by § 3018(b), it may only be stricken if scandalous or prejudicial matter was unnecessarily included (CPLR § 3024[b]). The allegations contained in the third affirmative defense cannot be construed as prejudicial or scandalous in any respect whatsoever. Therefore, this affirmative defense was properly asserted and claimant's motion to strike this defense is hereby denied.

Furthermore, even though the first and second affirmative defenses are to be dismissed, claimant is advised that this Court has made no determination herein that a valid cause of action has been stated. Defendant, at its option, retains the right to proceed by way of a motion to dismiss pursuant to CPLR Rule 3211.

Based on the foregoing, therefore, it is

ORDERED, that Motion No. M-68336 is hereby GRANTED, in part, and the first and second affirmative defenses asserted by the defendant in its answer are hereby dismissed; and it is further

ORDERED, that the aspect of this motion seeking to dismiss defendant's third affirmative defense is hereby DENIED.


August 10, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims