New York State Court of Claims

New York State Court of Claims

VERLEY v. THE STATE OF NEW YORK , #2004-030-596, Claim No. 109514, Motion No. M-69137


Synopsis



Case Information

UID:
2004-030-596
Claimant(s):
HAROLD VERLEY
Claimant short name:
VERLEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109514
Motion number(s):
M-69137
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
HAROLD VERLEY, 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:
December 7, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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


strike Defendant's affirmative defenses:

1,2 Notice of Motion; Affidavit in Support by Harold Verley, Claimant and attached exhibits

  1. Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General
4,5 Filed papers: Claim, Answer

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

Harold Verley, the Claimant herein, alleges in Claim Number 109514 that Defendant's agents negligently or intentionally lost his personal property while he was in the custody of the New York State Department of Correctional Services (hereafter DOCS) at various correctional facilities.

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."

In its Answer, in addition to general denials the Defendant asserts two affirmative defenses. The first affirmative defense alleges Claimant's culpable conduct, including contributory negligence and assumption of risk, as contributing to the alleged injuries sustained by the Claimant. The second affirmative defense is related to the first, alleging Claimant's culpable conduct again and the culpable conduct of others for whom the Defendant has no legal responsibility, and while it may be somewhat redundant, it still places in issue the propriety of the conduct and is properly asserted. Since Claimant alleges that Defendant had exclusive control of the property, any question of which actor may be responsible for the location of the property at any given time is one of fact, determinable at a plenary trial.

As noted by the Assistant Attorney General, although there has been previous motion practice on this claim, to wit: it was filed pursuant to an application for permission to serve and file a late claim, there does not appear to have been much discovery, making it difficult to tailor any defenses more narrowly. Claimant has simply not shown how the defenses asserted in the Answer lack merit or are otherwise deficient.

Accordingly, Claimant's motion number M-69137 is in all respects denied.

December 7, 2004
White Plains, New York

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