New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2004-032-109, Claim No. 109146, Motion No. M-68994


Claimant's motion to amend his claim is granted to the extent that the date of accrual is deemed to be added to its allegations. Claimant's motion to strike the affirmative defenses is granted only with respect to the fourth affirmative defense, untimeliness, and ninth affirmative defense, failure to state the date of accrual.

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:
Renaldo Rodriguez, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Stephen J. Maher, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
November 23, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has moved to amend his claim which alleges that he was wrongfully confined at Clinton Correctional Facility. The original claim alleges that he was transferred to Clinton in March 2003 and, because he had previously been diagnosed with and treated for tuberculosis, he was placed in segregated housing until his status could be reviewed. The review was conducted in June 2003, and the infectious disease nurse at the facility released claimant from medical hold. Claimant was not informed of this, however, and he continued to be kept in segregated housing. The claim, which was filed in April 2004, does not indicate when claimant was released from such confinement.

In its answer, defendant State of New York raised the following affirmative defenses: 1) claimant's culpable conduct, 2) failure to state a cause of action, 3) lack of verification, 4) untimeliness, 5) failure to file with the Clerk of the Court, 6) lack of jurisdiction over civil rights causes of action, 7) immunity for discretionary or quasi-judicial determinations, 8) privilege for discretionary determinations made by public officials, 9) failure to state the date on which the claim accrued, 10) insufficient paticularization of the nature of the cause of action, 11) lack of jurisdiction because the claim should be brought as an Article 78 proceeding, and 12) CPLR Article 16 relating to equitable share of liability. In addition to his request for permission to amend his claim, in a document captioned "Motion to Traverse" claimant also disputes, and implicitly moves to strike, these defenses.

The proposed claim attached to claimant's notice of motion is no different, in any significant way, from the original claim. As with the original, the proposed amended claim does not indicate when claimant was released from segregated housing at Clinton Correctional Facility. In his "Motion to Traverse," however, addressing defendant's fourth affirmative defense, claimant states that he was not aware that he should have been released in June 2003 until he was informed by mail on January 8, 2004 that the facility nurse had released him from medical hold.

Claimant argues, incorrectly, that the cause of action accrued when he was informed that his confinement was wrongful, and thus he asserts that the claim accrued in January 2004. The correct date of accrual for a wrongful confinement claim is, as with false imprisonment, on the day that the unlawful confinement ends (Ramirez v State of New York, 171 Misc 2d 677 [Ct Cl 1997]; see also, Collins v McMillan, 102 AD2d 860 [2d Dept 1984]; Boose v City of Rochester, 71 AD2d 59, 65 [4th Dept 1979]). Although claimant apparently does not realize its importance, his reply affidavit contains a statement that he was transferred from Clinton Correctional Facility on January 8, 2004 (Rodriguez reply affidavit, ¶8). This, therefore, is the date on which the claim accrued, and it is also, perhaps coincidentally, the date that he claims as the date of accrual because it is when he received written verification that his medical hold had been removed several months before.[1] The claim was filed on April 5, 2004 and, apparently, served on the Attorney General on April 6, 2004 (Maher affirmation, ¶3). April 6, 2004 is the eighty-ninth day after January 8, 2004, and consequently the claim is timely. Claimant's original claim is deemed to be amended, therefore, to include the allegation that his [cause of action accrued on January 8, 2004]. As a result, defendant's fourth and ninth affirmative defenses are stricken.

With respect to the other affirmative defenses, which claimant addresses in his "Motion to Traverse," there is no need at this time to make a ruling as to their validity. 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]); may serve a demand for a bill of particulars with respect to the defense (CPLR 3041); and/or may 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, and "[i]f 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 addition, many matters that are typically pled as affirmative defenses do not, in fact, raise any issue that is not already in dispute between the parties and, thus, they are not true affirmative defenses. The frequent allegation that a claim or complaint "fails to state a cause of action" is one such example. As a general rule, recitation of these "defenses" in the answer does not alter the issues that are in dispute and which must be proved by the parties, and unless there is prejudice, "there is no reason to permit a motion to strike" (2 Weinstein-Korn-Miller, NY Civ Prac ¶3018.14).

In the instant situation, claimant should, if he wishes to do so, serve on defendant a demand for a bill of particulars with respect to the remaining defenses, to learn the factual allegations on which each is based. If any of those facts can be disproved by documentary evidence, claimant may then make a formal motion to strike. If not, he may simply prepare to rebut the underlying facts when the matter comes to trial. If defendant fails to provide any particulars to support a defense, then that defense may not be proven at trial.

Claimant's motion is granted to the extent that the original claim is deemed to contain a statement alleging that the cause of action for wrongful confinement accrued on January 8, 2004 and defendant's fourth and ninth affirmative defenses are stricken. Other than those three changes, the original pleadings stand.

November 23, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion to amend his claim and, by implication, to strike defendant's affirmative defenses:
1. Notice of Motion and Proposed Amended Claim of Renaldo Rodriguez, pro se, with annexed "Motion to Traverse";

2. Affirmation in Opposition of Stephen J. Maher, Esq., AAG;

3. Responding Affidavit of Renaldo Rodriguez, pro se;

Filed papers: Claim; Answer

[1] That January 8, 2004 is the date of accrual is buttressed by an attachment to claimant's reply affidavit. On January 5, 2004, claimant filed an inmate grievance complaint which stated that he recently found out that the medical hold had been lifted several months before but "I remain keeplocked – wrongfully." In a response from the I.G.R.C, dated January 20, 2004, it is stated that claimant has been transferred as a result of the lifting of the medical hold. He was released from confinement, therefore, sometime between January 5 and January 20.