This is a claim by Christopher Milby (hereinafter "claimant") an infant by his
father and natural guardian, Robert Milby, for injuries resulting from the
alleged negligence of the State of New York (hereinafter "State") which took
place on July 27, 2002, in Hampton Bays, New York, when claimant fell upon a
pipe protruding from the ground.
On or about September 27, 2002, claimant served a Notice of Intention upon the
State. On or about April 15, 2004, the claim was served upon the Attorney
General's Office by certified mail, return receipt requested. Claimant filed
his claim with the Clerk of the Court on April 22, 2004. Issue was joined when
the defendant filed its answer on June 1, 2004. Included within defendant's
answer are eight affirmative defenses. By motion, filed June 7, 2004, claimant
moves to dismiss all of the defendant's affirmative
The first affirmative defense is that claimant's injuries were caused by his
own culpable conduct or the culpable conduct of others for whom defendant is not
responsible. Claimant argues that, as a matter of law, a person of his age (5
years old at the time of the incident) cannot be deemed contributorily negligent
(Martin v State of New York, 215 App Div 405 aff'd 243 NY 531).
Defendant argues that a person of an age to participate in an activity can
understand inherent risks of the activity (Blanco v Elmont Union Free School
Dist., 179 Misc 2d 918).
The Court is unaware of what activity, other than fishing, claimant was engaged
in when this accident occurred.
is at its earliest stages in the litigation process. To date, no conference has
been held, nor have the parties engaged in any discovery. The Court denies
claimant's motion to strike the defendant's first affirmative defense.
Defendant's second affirmative defense deals with the doctrine of assumption of
the risk. The Court reiterates that it is too early in the litigation to
determine what claimant knew or did not know in regard to appreciating any
hazards or defects present. The Court denies claimant's motion to strike the
defendant's second affirmative defense.
Defendant's third affirmative defense raises the issue of joint and several
liability pursuant to CPLR Art. 16 and GOL 15-108. Claimant argues that the
defense is improper because it fails to identify other parties who may be
responsible. Claimant has attached Exhibit B to his supporting papers which
purports to be a letter from a title company which seems to indicate that the
area where claimant was injured belongs to Suffolk
Claimant's motion as to the third
affirmative defense is premature. The Court denies claimant's motion as to the
third affirmative defense.
Defendant's fourth affirmative defense states that the claim was improperly
served, in that it was not personally served on an Assistant Attorney General or
by certified mail, return receipt requested. In support of his motion to strike
the affirmative defense, claimant offers the return receipt and the affidavit of
service. The Court grants claimant's motion to strike the fourth affirmative
The fifth and sixth affirmative defenses are that the description of the
location and condition of the incident are inadequate. The requirements of the
Court of Claims Act are jurisdictional in nature and must be strictly construed
(Lurie v State of New York, 73 AD2d 1006, aff'd 52 NY2d 849). The
purpose of these requirements is to give the State prompt notice of an
occurrence and an opportunity to investigate the facts and prepare a defense.
There must be sufficient detail to enable the State to investigate
(Schwartzberg v State of New York, 121 Misc 2d 1095, aff'd 98 AD2d
902). Pursuant to the Court of Claims Act, a claim must include the time when
and place where the claim arose, the nature of the claim, items of damage or
injuries sustained as well as the total sum claimed. If the original document
does not include all that is essential to constitute a claim, the document is
jurisdictionally defective (Grande v State of New York, 160 Misc 2d 383)
and the claim is subject to dismissal even if there is no prejudice to defendant
(Byrne v State of New York, 104 AD2d 782 lv den 64 NY2d
The Court is unaware if claimant's description satisfies the requirements of
Court of Claims Act §11. Defendant, in its opposition, states in a
conclusory fashion that the description is inadequate. There is no support to
show that defendant was unable to investigate this matter because of claimant's
description, however, defendant did not cross-move, at this juncture, to dismiss
the claim based upon this affirmative defense. The Court denies claimant's
motion to strike the fifth and sixth affirmative defenses.
The Court denies claimant's motion to strike the seventh and eighth affirmative
defenses as well. Claimant's motion is premature because no discovery has been
done to date.
Based on the foregoing, the Court denies claimant's motion to strike
defendant's 1st, 2nd, 3rd, 5th, 6th, 7th, and 8th affirmative defenses. The
Court grants claimant's motion to strike defendant's 4th affirmative defense.