New York State Court of Claims

New York State Court of Claims

PEARL v. THE STATE OF NEW YORK, #2004-033-066, Claim No. 108844, Motion No. M-68057


Synopsis



Case Information

UID:
2004-033-066
Claimant(s):
CLARENCE PEARL
Claimant short name:
PEARL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108844
Motion number(s):
M-68057
Cross-motion number(s):

Judge:
James J. Lack
Claimant's attorney:
Clarence Pearl, Pro Se
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Kathleen M. Resnick, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 29, 2004
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim is brought by Clarence Pearl (hereinafter "claimant') against the defendant for the loss of his personal property. Claimant is incarcerated by the defendant.

The claim alleges that the defendant was negligent when it transferred the claimant from Ulster Correctional Facility to Ogdensburg Correctional Facility. Claimant alleges that the defendant lost or misplaced his property during his transfer. In a decision and order (M-67452), filed on December 29, 2003, claimant received permission to file his claim as a late claim. Thereafter, on January 29, 2004, the claim was filed. The defendant answered the claim and included seven affirmative defenses.

Claimant moves this Court to dismiss the defendant's affirmative defenses[1]. In his Affidavit, claimant outlines his arguments against the affirmative defenses as follows [2]:
  1. That the second defense is not applicable to this matter and has no merit.
  2. That the third defense is not applicable. (See Attached Exhibit B) Correction Department Receipt.
  3. That the fourth defense is not applicable since personal property was in the possession of the Defendant, Correction Department, as Bailee (See Attached Exhibit C) Correspondence from facility Inmate Records Coordinator, Ms. Helga Ross, with personal property receipt.
  4. That the fifth defense is not applicable.
  5. That the sixth defense is not applicable as no reimbursement has been made.
  6. That the seventh defense does not apply ( No privilege in this case.)

The challenged affirmative defenses read as follows:
AS AND FOR A SECOND DEFENSE

To the extent that the claim challenges official action involving the exercise of discretion on the part of correction officials, the State is immune from the liability alleged, and the claim is beyond the Court's subject matter jurisdiction.

AS AND FOR A THIRD DEFENSE

The State is not liable for property that claimant did not own and rightfully possess under Department of Correctional Services' directives.

AS AND FOR A FOURTH DEFENSE

The State of New York is not responsible for any damages alleged in the claim caused, in whole or in part, by claimant's own culpable conduct, as defined in CPLR 1411.
AS AND FOR A FIFTH DEFENSE

The State of New York is not responsible for damages, if any, caused by the superseding intervention of persons or causes independent of the State, beyond the State's control, or acting outside the scope of their official duties or employment.

AS AND FOR A SIXTH DEFENSE

The State's liability, if any, will be limited by any payment claimant has accepted or will accept on an administrative claim for losses alleged herein or by any release claimant has executed pertaining to liability alleged herein.

AS AND FOR A SEVENTH DEFENSE

The acts complained of are privileged in nature in that they are activities mandated by regulation in the course of defendant's business for which defendant has an absolute or a qualified privilege.
In Arquette v State of New York, 190 Misc 2d 676, 688, the Court held:A motion to dismiss a defense must be made on the ground that a defense is not stated or that it has no merit (CPLR 3211 [b]; Winter v Leigh-Mannell, 51 AD2d 1012), and it is error for a court to strike a defense when material issues of fact remain unresolved (Matter of Harrison v State of New York, 262 AD2d 833; Connelly v Warner, 248 AD2d 941). The movant bears the burden of coming 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., 34 AD2d 824; see also, Pellegrino v Millard Fillmore Hosp., 140 AD2d 954).

Claimant's opposition to the defendant's affirmative defenses, in the instant matter, are conclusory allegations and assertions.

Based upon the foregoing, the Court denies claimant's motion to dismiss the affirmative defenses.


June 29, 2004
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1]The following papers have been read and considered on claimant's Notice of Motion: Notice of Motion to Dismiss Affirmative Defenses dated January 23, 2004 and filed January 29, 2004; Affidavit of Clarence Pearl in Support of Motion to Dismiss with annexed Exhibits A-C sworn to January 23, 2004 and filed January 29, 2004; Affirmation in Opposition of Kathleen M. Resnick, Esq., with annexed Exhibits A-E dated April 20, 2004 and filed April 20, 2004; Reply to Affirmation in Opposition of Clarence Pearl with annexed Exhibits A-E dated April 25, 2004 and filed April 28, 2004.
[2]In the Affirmation in Opposition, defendant agrees to withdraw the first affirmative defense. Therefore, the Court will limit its decision to the remaining six affirmative defenses.