New York State Court of Claims

New York State Court of Claims

HINCHEY v. THE STATE OF NEW YORK, #2004-016-063, Claim No. 109530, Motion No. M-68856


Synopsis


Motion for order striking defendant's affirmative defenses was denied.

Case Information

UID:
2004-016-063
Claimant(s):
JASON HINCHEY
Claimant short name:
HINCHEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109530
Motion number(s):
M-68856
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Jason Hinchey
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Carol A. Cocchiola, Esq., AAG
Third-party defendant's attorney:

Signature date:
October 4, 2004
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is claimant Jason Hinchey's motion to dismiss the State's affirmative defenses. In his underlying claim, Mr. Hinchey alleges that because of the State's negligence, on February 5, 2004, he was struck on the forehead by ice falling from the roof of a building in the Woodbourne Correctional Facility Recreation Yard. Defendant has asserted two affirmative defenses. The first is that any injuries sustained by claimant were caused by culpable conduct, including assumption of risk, by claimant. The second is that any injuries sustained by claimant were the fault of some third person or persons.

Such affirmative defenses are not dispositive of Hinchey's claim. Like the allegations in the claim itself, they are merely assertions made by a party. No prejudice has been identified by claimant which would warrant striking such affirmative defenses. See, e.g., 5 Weinstein-Korn-Miller, NY Civ Prac ¶3018.14 at 30-410.

Accordingly, having reviewed the parties' submissions[1], IT IS ORDERED that motion no. M-68856 be denied.



October 4, 2004
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The following were reviewed: claimant's notice of motion with affidavit in support; and defendant's affirmation in opposition.