New York State Court of Claims

New York State Court of Claims

CANDIDUS v. THE STATE OF NEW YORK, #2004-032-098, Claim No. 109243, Motion No. M-68719


Pro se inmate's motion to strike defenses, which is in reality something akin to a motion for summary judgment, is denied. A motion to strike defenses is not a vehicle for a claimant to prove his claim.

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:
Robert Candidus, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Kathleen M. Arnold, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
November 22, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim for the loss of personal property that, it is alleged, occurred when claimant was transferred from the Annex Building of Clinton Correctional Facility to Special Housing Unit (SHU) that is in the main facility building. The loss allegedly occurred on November 3, 2003. In response to the claim, defendant State of New York filed and served an answer which contained denials of claimant's allegations and sets forth the following affirmative defenses: (1) failure to state a cause of action against defendant, (2) lack of subject matter jurisdiction, (3) non-liability for any property that claimant did not rightfully possess pursuant to Department of Correctional Services (DOCS) Directives, (4) claimant's culpable conduct, (5) culpable conduct of third parties, and (6) satisfaction and release. Claimant now moves to strike these defenses.

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 confused 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]). Such a motion should not be granted 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 [Sup Ct, Westchester County 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, 1996, Stallman, J.]). 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]). Rather than moving to strike affirmative defenses, it is frequently better practice to serve defendant with a demand for a bill of particulars with respect to each defense, in order to determine if there is any substantive basis supporting it (CPLR 3041).

In the instant case, claimant has not met, or even attempted to meet, the burden of challenging the factual bases of the defenses. Instead, he is apparently making an effort to marshal his evidence and set forth his case, attempting to prove his claim on documentary submissions. That result is not, as a practical matter, a motion to strike defendant's defenses but a motion for summary judgment. Summary judgment is an extraordinary remedy that should not be granted "where there is any possible doubt as to the existence of a triable or arguable issue" (Dykstra v Windridge Condominium One, 175 AD2d 482, 483 [3d Dept 1991]). In general, it is a difficult matter for pro se litigants to succeed in proving their case in this fashion. To succeed in such a motion, the moving party must present evidentiary facts that establish the party's right to judgment as a matter of law (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]), and the Court must grant the non-moving party every favorable inference (Hartford Ins. Co. v General Acc. Group Ins. Co., 177 AD2d 1046, 1047 [4th Dept 1991]). Claimants who are untutored in the law are better advised to organize their evidence and their argument for presentation at trial.

In any event, bringing a motion to strike defenses is an inappropriate and ineffective way to prove one's claim, and claimant's motion must be denied.

November 22, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion to strike defendant's defenses:

1. Notice of Motion and Supporting Affidavit of Robert Candidus, pro se, with annexed Exhibits 2. Affirmation in Opposition of Kathleen M. Arnold, Esq., AAG, with annexed Exhibits

3. Letter of Robert Candidus, pro se, with annexed Exhibits

4. Second letter of Robert Candidus, pro se

Filed papers: Claim; Answer