New York State Court of Claims

New York State Court of Claims

ALAS v. THE STATE OF NEW YORK, #2004-016-065, Claim No. 109595, Motion No. M-68946


Synopsis


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

Case Information

UID:
2004-016-065
Claimant(s):
MARIO ALAS
Claimant short name:
ALAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109595
Motion number(s):
M-68946
Cross-motion number(s):

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

Signature date:
October 20, 2004
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is claimant Mario Alas's motion to dismiss the State's affirmative defenses. In his underlying claim, Mr. Alas alleges improper medical treatment at Woodbourne Correctional Facility. Defendant has asserted five affirmative defenses as follows, that: (1) the Court lacks jurisdiction because the claim was improperly served by regular mail; (2) claimant failed to comply with time limitations set forth in the Court of Claims Act; (3) any injuries sustained by claimant were caused by culpable conduct, including assumption of risk by claimant; (4) any injuries sustained by claimant were the fault of some third person or persons; and (5) defendant is not liable for a claim of lack of informed consent.

Such affirmative defenses are not dispositive of Alas' 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-68946 be denied.



October 20, 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.