New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2004-015-387, Claim No. 108326, Motion No. M-67793


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:
Derrick M. Johnson, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael Rizzo, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 3, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for an order requiring the defendant to supplement certain denials contained in the first paragraph of the verified answer and dismissing certain defenses and striking the verification contained therein is denied. In his claim served upon the Attorney General on September 22, 2003 and filed with the Court on September 24, 2003 the claimant asserts that he suffered certain injuries when he was exposed to tear gas as a result of an unintended discharge in the mess hall at Great Meadow Correctional Facility, Comstock, New York. Specifically, claimant alleges that he was injured on June 24, 2003 while working in the inmate mess hall when a tear gas system was negligently discharged exposing him to caustic substances and causing him to suffer various physical injuries.

The motion seeks three primary categories of relief. The first requests "an order pursuant to CPLR Section 3024 (b) requiring the defendant to state verbatim or substance or annex to his verified answer any materials, data or information that would cause for counsel to believe upon such information that would allow him to deny the truth of paragraph numbered, "FIRST", "SECOND", "EIGHTH", "TWELFTH", 9, 11 of the claim". These specific paragraphs of the claim are referenced in the first paragraph of the verified answer in which the defendant denies knowledge and information sufficient to form a belief as to the truth of the allegations.

CPLR 3024 (a) permits a party to move for a more definitive statement where a pleading is "so vague or ambiguous that a party cannot reasonably be required to frame a response". By its terms Rule 3024 (a) applies only to a party required to respond to the allegedly inadequate pleading (Della Villa v Constantino, 246 AD2d 867; Foley v D'Agostino, 21 AD2d 60). As such, claimant is not entitled to the relief requested.

CPLR 3018 (a) permits a party to specify in a responsive pleading those statements or allegations contained in the pleading responded to as to which he lacks knowledge or information sufficient to form a belief. Any statements so referenced are deemed denied. The CPLR does not provide a mechanism for striking improper denials and, therefore, relief under 3018 (a) is likewise unavailable to the claimant (Gilberg v Lennon, 193 AD2d 646; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3018:3, C3018:4 at 146, 148).

Claimant also seeks to strike various defenses asserted in the fourth, fifth, sixth, seventh, eighth and ninth paragraphs of the verified answer. CPLR 3211 (b) authorizes a motion to dismiss one or more defenses on the basis that a defense is not stated or has no merit. The movant bears the burden of coming forward with sufficient proof to demonstrate that the 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).

Claimant's notice of motion does not reference relief pursuant to CPLR 3211 (b) and claimant has failed to provide any proof whatsoever regarding the relative merit of the subject defenses. As a result, claimant's motion to strike the defenses set forth in the answer is denied.

Finally, claimant's motion seeks to strike the verification contained in the answer as irrelevant and unnecessary. Court of Claims Act § 9 (9) provides that practice in the Court of Claims shall be the same as in Supreme Court "except as otherwise provided by this act or by rules of this court" (see also, CPLR 101; Uniform Rules for the Court of Claims section 206.1 [c]). Court of Claims Act § 11 (b) requires that a claim and notice of intention to file a claim be verified in the same manner as a complaint in supreme court. As CPLR 3020 (a) requires that where a pleading is verified all subsequent pleadings shall also be verified, the defendant was under an obligation to verify the answer and claimant's motion is denied on that basis.

For the reasons stated above the claimant's motion is in all respects denied.

March 3, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated November 4, 2003;
  2. Affirmation/Affidavit of Derrick M. Johnson sworn to December 11, 2003;
  3. Affidavit of Michael C. Rizzo sworn to January 6, 2004 with exhibits;
  4. "Reply to Opposition" sworn to January 15, 2004 with exhibits.