New York State Court of Claims

New York State Court of Claims

ROSADO v. THE STATE OF NEW YORK, #2004-016-078, Claim No. 109562, Motion No. M-69295


Synopsis


Motion to strike affirmative defenses was denied.

Case Information

UID:
2004-016-078
Claimant(s):
ANGEL L. ROSADO
Claimant short name:
ROSADO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109562
Motion number(s):

Cross-motion number(s):
M-69295
Judge:
Alan C. Marin
Claimant's attorney:
Angel L. Rosado, Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Joseph F. Romani, Esq., AAG
Third-party defendant's attorney:

Signature date:
December 8, 2004
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is claimant Angel L. Rosado's motion to dismiss the State's affirmative defenses. In his underlying claim, Mr. Rosado alleges improper medical treatment at Woodbourne Correctional Facility. Defendant has asserted six affirmative defenses as follows, that: (1) the claim fails to state a cause of action against the State; (2) and (3) the claim fails to comply with the specificity requirements of §11 of the Court of Claims Act; (4) defendant's actions were privileged and thus defendant is immune; (5) any injuries sustained by claimant were caused by culpable conduct, including assumption of risk by claimant; and (6) any injuries sustained by claimant were the fault of some third person or persons.

Such affirmative defenses are not dispositive of Rosado'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 30-431.

Accordingly, having reviewed the parties' submissions[1], IT IS ORDERED that motion no. M-69295 be denied.


December 8, 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.