New York State Court of Claims

New York State Court of Claims

MILBY v. THE STATE OF NEW YORK, #2004-033-079, Claim No. 109226, Motion No. M-68612


Case Information

CHRISTOPHER MILBY, an infant by his natural father and guardian, ROBERT MILBY
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:
The Law Offices of Walter Jennings, P.C.By: David C. Holland, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 30, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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 defenses[1].

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.[2] This matter 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 County.[3] 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 defense.

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 607).

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.

September 30, 2004
Hauppauge, New York

Judge of the Court of Claims

[1]The following papers have been read and considered on claimant's motion: Undated Notice of Motion filed June 7, 2004; Affirmation in Support of David C. Holland, Esq. with annexed Exhibits A-B dated June 3, 2004 and filed June 7, 2004; Affirmation in Opposition to Claimant's Motion of John M. Shields, Esq. with Exhibit dated July 6, 2004 and filed July 9, 2004.
[2]Counsel's description that claimant was running in grass cannot be considered by the Court. The Court can only consider evidence in admissible form.
[3]In the body of the affirmation, Exhibit B is described as photographs of the pipe claimant was injured on and photographs of claimant's injuries. The photographs are not attached to the Court's copy of the motion.