New York State Court of Claims

New York State Court of Claims

BRITT v. THE STATE OF NEW YORK, #2004-019-578, Claim No. 107018, Motion No. M-69003


Synopsis


Claimant's motion to strike State's affirmative defenses is denied.

Case Information

UID:
2004-019-578
Claimant(s):
DON JUAN BRITT, #96-A-5388
Claimant short name:
BRITT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107018
Motion number(s):
M-69003
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
DON JUAN BRITT, 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:
September 27, 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 two affirmative defenses contained in the defendant's Verified Answer. The defendant State of New York (hereinafter "State") opposes the motion.

This claim arose when claimant was allegedly assaulted by correction officers responding to an inmate on inmate assault involving claimant at the Elmira Correctional Facility on September 7, 2002. This claim was filed with the Clerk of the Court on December 2, 2002. The State filed a Verified Answer on January 6, 2003 containing two 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). The affirmative defenses at issue here are standard including allegations of claimant's culpable conduct, as well as the culpable conduct of third parties. The court notes that the State expanded upon these defenses in a discovery response specifically citing claimant's own culpable conduct in relation to the initial inmate on inmate assault to which the officers were responding, as well as to the alleged culpable conduct of the other inmates involved in that underlying incident. (State's Response to Demand For Bill of Particulars dated March 27, 2003, ¶ a). Consequently, the court finds that both of the State's affirmative defenses are proper and claimant's motion to strike the State's affirmative defenses should be denied.


Accordingly, for the reasons stated above, it is ORDERED that claimant's motion to strike the defendant's affirmative defenses, Motion No. M-69003, is DENIED.


September 27, 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 December 2, 2002.
  2. Verified Answer, filed January 6, 2003.
  3. Notice of Motion No. M-69003, dated July 30, 2004, and filed August 26, 2004.
  4. Affidavit of Don Juan Britt, in support of motion, sworn to July 28, 2004, with attachments.
  5. Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated September 20, 2004, and filed September 22, 2004.