In this pro se claim, claimant alleges that on January 23, 2003, in connection
with his transfer from Upstate Correctional Facility to Attica Correctional
Facility for a court appearance, all of his property was placed in Upstate's
storage room by Correction Officer Hyde. When he returned, on February 10, 2003,
only two of his four property bags were returned to him. He also never received
the court bag that had been put on the bus with him. Claimant filed an
institutional claim and, when it was denied, unsuccessfully appealed the denial.
The claim includes a page and a half list of items alleged to be missing, which
total $2,285.37 and adds a demand for $10,714.63 for mental pain and
In its answer, the State of New York raised six affirmative defenses: immunity
for discretionary actions; non-liability for property claimant did not own and
possess under Departmental directives; claimant's own culpable conduct; action
of an independent party; limitation to any amount of payment claimant has
accepted; and lack of verification. Claimant has moved to strike these defenses.
In response, counsel for defendant has cross-moved for an order of dismissal
based on the claim's lack of verification.
The State's cross-motion must fail.
time the verification requirement found in section 11(b) of the Court of Claims
Act was considered jurisdictional and failure to comply with this requirement
was a defect that could not be waived (see
, Price v State of New
, __Misc 2d __, 2003 WL 21669922 [Ct Cl 2003]). The Court of Appeals
has recently indicated that this is not the case. Reasoning that "there is no
basis for treating an unverified or defectively verified claim or notice of
intention any differently than an unverified or defectively verified complaint
is treated under the CPLR in Supreme Court," the high court stated that the
remedy for defective verification would appear to be the remedy found in CPLR
3022: the pleading must be treated as a nullity by returning it with "due
diligence" (Lepkowski v State of New York
, 1 NY3d 201 ).
With respect to claimant's motion, affirmative defenses are to be set forth
when there are 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" (CPLR 3018). Parties on whom an opponent's affirmative
defenses are served may simply accept that knowledge and plan their case
accordingly; move for a more particular statement if the allegations are
confusing or unclear (CPLR 3024 [a]); serve a demand for a bill of particulars
with respect to the defense (CPLR 3041); or move to dismiss or strike a defense
on the ground that "it is not stated or has no merit" (CPLR 3211 [b]; Winter
v Leigh-Mannell, 51 AD2d 1012 [2d Dept 1976]). The motion should not be
granted, therefore, if there is any doubt as to the availability or
applicability of a defense, or when material issues of fact remain unresolved
(Matter of Harrison v State of New York, 262 AD2d 833 [3d Dept 1999];
Connelly v Warner, 248 AD2d 941 [4th Dept 1998]; Krantz v
Garmise, 13 AD2d 426 [1st Dept 1961]; Ruffing v Union Carbide Corp.,
186 Misc 2d 679 [NY Sup Ct 2000]).
The moving party bears the initial burden of challenging the factual basis of
the defense, and typically this is met by use of an affidavit based on personal
knowledge or other evidentiary proof (Arriaga v Michael Laub Co., 233
AD2d 244 [1st Dept 1996]). In any event, the movant must come forward with
sufficient proof to demonstrate that the defense cannot be maintained (1
Weinstein-Korn-Miller, CPLR Manual § 21.05; City of New York v
Mills, 1996 WL 882642 [Civ Ct, NY County, Dec. 6, 1996, Stallman, J.]),
while the defendant is entitled to the benefit of every reasonable construction
of the pleading. "If there is doubt as to the availability of a defense, it
should not be dismissed" (Duboff v Board of Higher Educ. of City of New
York, 34 AD2d 824 [2d Dept 1970]; see also, Pellegrino v Millard
Fillmore Hosp., 140 AD2d 954 [4th Dept 1988]).
In the instant case, claimant has not met this burden. His objections to
defendant's answer do not consist of documentary proof or statements made on
personal knowledge showing that there is no possible merit to each of the
defenses. Instead, he makes bald assertions, such as his statement that the acts
complained of are not acts involving discretion or his statement that no acts on
his part caused the property loss. Claimant would be better served to demand
from defendant a bill of particulars with respect to each defense, after
defendant has had time to conduct some investigation and discovery and can be
expected to set forth the facts underlying each defense.
Claimant's motion is denied, and defendant's cross-motion is denied.