New York State Court of Claims

New York State Court of Claims

DAVIDSON v. THE STATE OF NEW YORK, #2004-015-379, Claim No. 108063, Motion No. M-67641


Synopsis


Court denied claimant's motion to strike defenses for lack of merit. Defense alleging failure to state cause of action is mere surplusage and need not be struck. Other defenses were facially viable and survived the motion.

Case Information

UID:
2004-015-379
Claimant(s):
CHESTER DAVIDSON
Claimant short name:
DAVIDSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108063
Motion number(s):
M-67641
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Chester Davidson, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 2, 2004
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant's motion to strike defendant's first, third and sixth affirmative defenses pursuant to CPLR 3211 (b) on the ground that the defenses lack merit is denied. The claim seeks to recover damages allegedly arising from the denial of parole on several occasions between February 1998 and December 2001. The claim alleges numerous and varied violations of the New York State Constitution and the United States Constitution as well as violations of unspecified statutes, by-laws (sic), rules and regulations.

Claimant's motion is addressed to the first, third and sixth affirmative defenses in defendant's answer which are as follows:
AS AND FOR A FIRST DEFENSE:

FOURTH: The claim was not filed or served within the 90-day time limitation, as prescribed by Sections 10 (3) and 11 of the Court of Claims Act. Accordingly, the Court lacks subject matter jurisdiction of the claim and personal jurisdiction over defendant, the State of New York.

AS AND FOR A THIRD DEFENSE:

SIXTH: The claim fails to state a cause of action against defendant, the State of New York.

AS AND FOR A SIXTH DEFENSE:

NINTH: The Court of Claims lacks jurisdiction of the allegations set forth in the claim.

The Appellate Division, Third Department has specifically held that the affirmative defenses of failure to state a cause of action and failure to state a claim upon which relief can be granted are "harmless surplusage and a motion to strike [them] should be denied as unnecessary (Pump v Anchor Motor Frgt., 138 AD2d 849, 851" (Schmidt's Wholesale v Miller & Lehman Constr., 173 AD2d 1004). Accordingly, the portion of claimant's motion seeking an order striking defendant's third affirmative defense is denied.

With regard to the first and sixth affirmative defenses the movant bears the burden of coming forward with sufficient proof to demonstrate that a defense cannot be maintained (Arquette v State of New York, 190 Misc 2d 676) and the defendant is entitled to every reasonable construction of the pleading and every favorable inference to be drawn therefrom (see, Nahrebeski v Molnar, 286 AD2d 891; Warwick v Cruz, 270 AD2d 255). A motion to dismiss a defense should not be granted where there exists any doubt as to its potential viability (see, Abney v Lunsford, 254 AD2d 318; Krantz v Garmise, 13 AD2d 426; Abdullah v State of New York, Ct Cl December 7, 2001 [Claim No. 104525, Motion No. M-64269] Bell, J., UID # 2001-007-141, unreported).

Both the claim and notice of intention to file a claim served by the claimant allege causes of action grounded in the denial of his parole applications in February 1998, December 1999 and December 2001. Claimant has included in his motion papers as part of Exhibit B a copy of his notice of intention to file a claim which was sworn before a notary public on February 23, 2002. While neither party has established the date the notice of intention was received by the Attorney General (see, Court of Claims Act § 11 [a]) it would appear that the timeliness defense set forth in the answer is viable at least as to certain of the claimant's causes of action such as those arising from the denial of parole in February 1998 and December 1999. Furthermore, it has been frequently held that "[d]eterminations pertaining to parole and its revocation . . . are deemed strictly sovereign and quasi-judicial in nature and, accordingly, the State, in making such determinations, is absolutely immune from tort liability" (Semkus v State of New York, 272 AD2d 74). As the claim asserts causes of action premised upon the denial of parole it would appear that the sixth defense set forth in the answer may well assert a meritorious defense, at least for purposes of the instant motion. The claimant's motion to dismiss the defendant's first, third and sixth defense is in all respects denied for the reasons set forth above.

February 2, 2004
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated October 30, 2003;
  2. Affidavit of Chester Davidson sworn to October 31, 2003 with exhibits;
  3. Affirmation of Michael W. Friedman dated November 25, 2003 with exhibit.