New York State Court of Claims

New York State Court of Claims

BENJAMIN v. THE STATE OF NEW YORK, #2004-030-565, Claim No. 109260, Motion No. M-68663


Synopsis



Case Information

UID:
2004-030-565
Claimant(s):
DAVID BENJAMIN
Claimant short name:
BENJAMIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109260
Motion number(s):
M-68663
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
DAVID BENJAMIN, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
August 13, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on Claimant's motion to strike


Defendant's Answer:

1,2 Notice of Motion; Affidavit to Strike Defendant's Answer sworn to June 15, 2004 with attachments

3-5 Notice of Motion; Affidavit by David Benjamin, Claimant, sworn to July 1, 2004; Addendum Affidavit to Strike Answer by David Benjamin, sworn to July 1, 2004

  1. Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General, dated June 25, 2004, with exhibit
  1. "Affirmation" in Opposition of July 12, 2004 by David Benjamin, Claimant sworn to July 15, 2004
  1. Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General dated June 12, 2004 (sic)[1], with exhibit
9,10 Filed Papers: Claim, Answer

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

Claimant has not advanced any tenable argument as to why the Court should strike Defendant's Answer to his Claim. Claimant has not raised any issues that might constitute grounds for striking an Answer. If spoliation of evidence were the issue, for example, Claimant would need to demonstrate that the Defendant intentionally " . . . destroyed physical evidence . . . it knew might be needed for future litigation, or that . . . [he was] prejudiced by any of the defendant's actions." Abenante v Star Gas Corporation, 278 AD2d 438 (2d Dept 2000). Claimant must show that the intentional failure to preserve the evidence obtained defendant an "unfair advantage." Gallo v Bay Ridge Lincoln Mercury, Inc., 262 AD2d 450, 451 (2d Dept 1999).

Claimant simply reiterates and expands somewhat on the assertions made in his Claim, and appears to misunderstand the nature of pleading requirements generally, including the pleading of defenses.

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 defense asserted in the Answer lacks merit or is otherwise deficient.

Accordingly, Claimant's motion number M-68663 is in all respects denied.

August 13, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] This appears to be a typographical error given that the Affirmation is responsive to Mr. Benjamin's July submissions, and the Affirmation was filed with the Chief Clerk of the Court of Claims on July 14. 2004.