New York State Court of Claims

New York State Court of Claims

COMBES v. THE STATE OF NEW YORK, #2004-019-569, Claim No. 109385, Motion Nos. M-68742, M-68743


Synopsis


Claimant's motion to strike State's affirmative defenses is denied and motion to file a supplemental claim is denied without prejudice

Case Information

UID:
2004-019-569
Claimant(s):
GEORGE COMBES
Claimant short name:
COMBES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109385
Motion number(s):
M-68742, M-68743
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
GEORGE COMBES, 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:
August 31, 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 first affirmative defense contained in the defendant's Verified Answer (Motion No. M-68742), as well as for permission to file a supplemental claim (Motion No. M-68743). The defendant State of New York (hereinafter "State") opposes both motions.[1]

This claim arose when claimant was physically assaulted by another inmate at the Elmira Correctional Facility on March 2, 2004 and alleges the State's negligent supervision in connection therewith. More specifically, claimant alleges that his attacker was known by the State to have violent propensities and that claimant himself was known to be at risk of harm. This claim was served on the Attorney General on April 22, 2004 and filed with the Clerk of the Court on May 21, 2004. The State filed a Verified Answer on May 28, 2004.

  1. Claimant's motion to strike State's first affirmative defense (Motion No. M-68742)
The State's first affirmative defense alleges "[t]hat the Notice of Intention to File a Claim is defective as it is unverified as required by Court of Claims Act § 11." (State's Verified Answer, ¶ 5). Claimant concedes that the notice of intention he served on the Attorney General's office on March 15, 2004 was not verified. Moreover, it is undisputed that upon receipt thereof, the State immediately rejected the notice of intention as a nullity and returned the same to claimant. (Affirmation of Carol A. Cocchiola, AAG, dated August 16, 2004, Exhibit A). By way of this motion, claimant concedes that his notice of intention lacked a verification, but argues that since his claim was timely and properly served and filed, the notice of intention is irrelevant and, as such, the State's first affirmative defense should be stricken. The State counters that the affirmative defense should remain "[s]hould there be any future litigation on the issue of the viability of the claim itself." (Affirmation of Carol A. Cocchiola, AAG, dated August 16, 2004, ¶ 8). More specifically, the State argues that "[s]hould a dispute arise as to the actual date of the incident, an issue as to the validity of the notice of intention could come before the Court." (Affirmation of Carol A. Cocchiola, AAG, dated August 16, 2004, ¶ 10).


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). Although it appears at this juncture that this claim was properly and timely filed and served, the court cannot foreclose the possibility that after discovery the notice of intention might somehow come up for review in the future. In any event, the State properly complied with the recent Court of Appeals decision by rejecting with due diligence the notice of intention as a nullity. (Lepkowski v State of New York, 1 NY3d 201). As such, in this court's view the State is entitled to preserve its first affirmative defense. Further, there is no prejudice to claimant by allowing the affirmative defense to remain. Accordingly, claimant's motion to strike the State's first affirmative is denied.

  1. Claimant's motion for permission to file a supplemental claim (Motion No. M-68743)

Claimant also moves for permission to file a supplemental claim, but has failed to submit a proposed amended claim. Rather, claimant merely alleges that he would like to add "other events" that have occurred that are related to his claim including verbal threats and harassment. According to CPLR 3025 (b), leave to amend should be freely given in the absence of surprise or prejudice resulting from the delay. (Esposito v Billings, 103 AD2d 956, 957). That having been said, however, the court cannot properly review the propriety of claimant's request without reviewing the actual proposed amendments. As such, the court will deny without prejudice claimant's motion for permission to file a supplemental claim with leave to file another motion upon proper papers, namely the inclusion of the proposed amended claim.


Accordingly, for the reasons stated above, it is ORDERED that claimant's motion to strike the defendant's first affirmative defense, Motion No. M-68742, is DENIED; and it is further ordered that claimant's motion for leave to file a supplemental claim, Motion No. M-68743, is DENIED WITHOUT PREJUDICE.

August 31, 2004
Binghamton, New York

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


The court has considered the following papers in connection with these motions:
  1. Claim, filed May 21, 2004.
  2. Verified Answer, filed May 28, 2004.
  3. Notice of Motion No. M-68742, dated June 3, 2004, and filed June 25, 2004.
  4. Affidavit of George Combes, in support of Motion No. M-68742, sworn to June 3, 2004.
  5. Notice of Motion No. M-68743, dated June 3, 2004, and filed June 25, 2004
  6. Affidavit of George Combes, in support of Motion No. M-68743, sworn to June 3, 2004.
  7. Affirmation of Carol A. Cocchiola, AAG, in opposition to Motion Nos. M-68742 and M-68743, dated July 26, 2004 and filed July 28, 2004.
  8. Affirmation of Carol A. Cocchiola, AAG, in opposition to Motion Nos. M-68742 and M-68742, dated August 16, 2004, and filed August 18, 2004, with attached exhibit.


[1]Originally the State opposed these motions solely on the grounds it had not been served with the motion papers. However, thereafter the State retracted its original opposing papers and now opposes the motions on the merits.