New York State Court of Claims

New York State Court of Claims

SANTOS v. THE STATE OF NEW YORK, #2004-030-503, Claim No. 108300, Motion No. M-67652


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
February 26, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5 were read and considered on Claimant's motion

brought pursuant to Civil Practice Law and Rules §§3211(b) and 3212 for an order striking the

affirmative defenses contained in Defendant's Answer and directing summary judgment:

1-2 Notice of Motion; Affidavit in Support of Motion for Summary Judgment by Jose Santos, Claimant and attached exhibit

  1. Affirmation in Opposition by Elyse J. Angelico, Assistant Attorney General and attached exhibit
4-5 Filed papers: Claim, Answer

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Jose Santos, the Claimant herein, alleges in Claim Number 108300 that Defendant's agents negligently lost Claimant's property while he was in the custody of the New York State Department of Correctional Services (hereafter DOCS) transferring from Sing Sing Correctional Facility to Fishkill Correctional Facility on or about April 17, 2003.

An affirmative defense is raised in an Answer to provide adequate notice to the Claimant of issues of law or fact that the Defendant may raise at trial or in later motion practice. Cipriano v City of New York, 96 AD2d 817 (2d Dept 1983). Indeed, Civil Practice Law and Rules §3018(b), concerning responsive pleadings, provides in pertinent part that a ". . . party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading such as . . . collateral estoppel, culpable conduct . . . or statute of limitation. The application of this subdivision shall not be confined to the instances enumerated."

Claimant has not shown how the affirmative defenses asserted in the Answer lacks merit or are otherwise deficient.

In its Answer, in addition to general denials the Defendant asserts five affirmative defenses. The first raises the immunity that cloaks public officials who make privileged, discretionary determinations while engaged in the performance of their duties. Since there is an issue of fact as to whether Defendant's agents followed proper procedures in the performance of their duties the defense is properly raised. The second affirmative defense is related to the first, and asserts that Defendant's agents acted lawfully, and while it may be somewhat redundant, it still places in issue the propriety of the conduct and is properly asserted. The third affirmative defense alleges Claimant's culpable conduct as contributing to his loss. Since Claimant alleges that Defendant had exclusive control of the property, this factual issue is also properly asserted. The fourth affirmative defense is a jurisdictional one, alleging that Claimant failed to properly serve the Claim on the Office of the Attorney General by certified mail, return receipt requested as required by Court of Claims Act §11. This is a properly raised factual issue. While Claimant has appended to his moving papers a copy of a return receipt date stamped by the Attorney General's Office on June 30, 2003, the affidavit of service filed with the Claim in the office of the Chief Clerk of the Court of Claims indicates that the Claim was served by "United States Mail" on the Attorney General on September 12, 2003: a date that does not correlate with the return receipt.

Finally, the fifth affirmative defense states that Claimant has failed to state with particularity the basis for the money damages sought: another statutory requirement. Court of Claims Act §11 (b). Since Claimant asserts a loss of $500.00, but does not state the basis for that loss, this affirmative defense is also appropriately raised.

With respect to Claimant's motion for summary judgment, Civil Practice Law and Rules §3212(b) provides in pertinent part:
. . . A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party . . . the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact.

Once a movant has made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate any genuine material issues of fact, the party in opposition to the motion for summary judgment must tender evidentiary proof in admissible form to establish the existence of material issues that require a trial. Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980).

Claimant has not met his initial burden of bringing forward sufficient evidence to demonstrate an absence of any material issues of fact to warrant summary judgment.

Accordingly, Claimant's motion number M-67652 is in all respects denied.

February 26, 2004
White Plains, New York

Judge of the Court of Claims