New York State Court of Claims

New York State Court of Claims

PALACIO v. STATE OF NEW YORK, #2004-018-287, Claim No. 107992, Motion No. M-67520


Synopsis


Case Information

UID:
2004-018-287
Claimant(s):
HERIBERTO PALACIO
Claimant short name:
PALACIO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107992
Motion number(s):
M-67520
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
HERIBERTO PALACIOPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: KATHLEEN M. RESNICK, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 11, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant brings a motion which appears to seek an order dismissing defendant's defenses

and granting summary judgment on the claim. Defendant has opposed the motion. The claim was filed with the Clerk of this Court on July 9, 2003. That claim alleges that the State charged "exorbitant and unnecessary postage fees" against his account on October 11, 2002 and November 6, 2002, damaged his property while in transit on November 12, 2002, deliberately destroyed or stole his property on March 20, 2003, damaged his property at Gouverneur Correctional Facility on June 1, 2003, damaged his property between June 1 and June 3, 2003, at Gouverneur Correctional Facility or while in transit to Auburn Correctional Facility, and lost stamps and never delivered a certain parcel around February 19, 2003.

CPLR 3211(b) provides that "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." In determining such a motion, the Court must accept as true the allegations of the defense and draw all reasonable inferences in favor of the defense (see 182 Fifth Avenue, LLC v Design Development Concepts, Inc. 300 AD2d 198; Siegel, NY Prac §269, at 428 [3d ed.]).

Claimant seems to take exception to defendant's general denials as well as the seven affirmative defenses it asserted. A motion to dismiss defenses cannot be used to strike general denials to the allegations of the claim (City of Rochester v Chiarella, 65 NY2d 92, 101). After reviewing defendant's seven affirmative defenses, the Court finds that they are potentially meritorious and will not be stricken. The actual viability of the defenses must await a trial determination.

Claimant's request for summary judgment also must be denied. Summary judgment, as is often said, is a drastic remedy which should only be granted where there are no issues of fact and the claim can be decided as a matter of law (Sillman v Twentieth Century-Fox Film, Corp., 3 NY2d 395). There are many factual issues here, which cannot be determined as a matter of law, but must be resolved after a trial.

Accordingly, claimant's motion is DENIED.


February 11, 2004
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims



The Court has considered the following documents in deciding this motion:


Notice of Motion...............................................................................................1


Affidavit of Heriberto Palacio, in support.........................................................2


Affirmation of Kathleen M. Resnick, Esquire, in opposition, with

exhibits attached thereto.........................................................................3