New York State Court of Claims

New York State Court of Claims

SPIRLES v. THE STATE OF NEW YORK, #2004-019-506, Claim No. 108211, Motion No. M-67759


Synopsis


Case Information

UID:
2004-019-506
Claimant(s):
MICHAEL SPIRLES
Claimant short name:
SPIRLES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108211
Motion number(s):
M-67759
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
MICHAEL SPIRLES, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
January 14, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, moves for an order striking the affirmative defenses contained in the defendant's Verified Answer. The defendant State of New York (hereinafter "State") opposes said motion. Claimant alleges the State was negligent in giving him "harmful medication" while he was incarcerated at Southport Correctional Facility. (Amended Claim, ¶ 2). Claimant filed his original claim with the Clerk of the Court on August 29, 2003 and an Amended Claim on September 15, 2003. The State filed a Verified Answer and a Verified Answer to Amended Claim on October 10, 2003. The State's Verified Answer to Amended Claim contains five affirmative defenses, namely: (1) want of jurisdiction pursuant to CCA § 10 for failure to timely file and serve a claim based upon a failure to specify an accrual date in the Amended Claim; (2) want of jurisdiction pursuant to CCA § 11 based upon a failure to allege an accrual date; (3) claimant's own culpable conduct; (4) the culpable conduct of a third party; and (5) Public Health Law § 2805-d (4).[1]


By way of this motion, claimant seeks an order "denying defendant's motion and to strike affirmative defense." (Notice of Motion). Initially, the court notes that the State's request for dismissal in the "wherefore" clause of its Verified Answer to Amended Claim does not equate to a motion to dismiss. With respect to claimant's motion to strike the State's affirmative defenses, it is well settled that "[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." (CPLR 3024 [b]). However, affirmative defenses are not dispositive of a claim and are merely assertions of a party, absent prejudice, that will not be stricken. (CPLR 3024; 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 3018.14). Here, claimant attacks the viability of the State's affirmative defenses particularly taking issue with the State's references to his failure to allege an accrual date in his pleadings. The court has reviewed the State's affirmative defenses and finds that none are prejudicial or scandalous in any respect whatsoever and the State properly included all these affirmative defenses in its Verified Answer to Amended Claim. In fact, the State's first and second affirmative defenses may well serve as the basis for a viable motion to dismiss.


Further, to the extent that claimant's motion may be construed as a request to proceed with poor person status and the assignment of counsel it is denied as well. An Order has previously been issued by this court reducing the filing fee for this claimant to $15.00 pursuant to Court of Claims Act 11-a (1). (Michael Spirles v State of New York, Ct Cl, September 15, 2003, Sise, J., Claim No. 108211). Since the filing fee has already been addressed, prosecuting the matter in this court does not require claimant to pay any further costs or fees. Additionally, it is well-settled that the appointment of counsel is discretionary in civil matters. (Matter of Smiley, 36 NY2d 433, 438). Generally, counsel will not routinely be assigned except in a proper case, such as one involving "grievous forfeiture or loss of a fundamental right." (Morgenthau v Garcia, 148 Misc 2d 900, 903). A review of the pleadings before the court in this case reveals a case of average complexity. In sum, this matter fails to rise to the level warranting assignment of counsel. Consequently, the court declines to exercise its discretionary authority on this matter.


Accordingly, for the reasons stated above, it is ORDERED that claimant's motion, Motion No. M-67759, is DENIED.


January 14, 2004
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims





The Court has considered the following papers in connection with this motion:
  1. Claim, filed August 29, 2003.
  2. Amended Claim, filed September 15, 2003.
  3. Verified Answer, filed October 10, 2003.
  4. Verified Answer to Amended Claim, filed October 10, 2003.
  5. Notice of Motion No. M-67759, dated November 19, 2003, and filed December 3, 2003.
  6. Affidavit of Michael Spirles, in support of motion, unsworn to, with attachment.
  7. Affirmation of Carol A Cocchiola, AAG, in opposition to motion, dated December 30, 2003, and filed January 2, 2004.

[1]The court will refer solely to the State's Verified Answer to Amended Claim inasmuch as it is nearly identical to the Verified Answer filed the same day.