New York State Court of Claims

New York State Court of Claims

JOSEPH v. THE STATE OF NEW YORK, #2004-034-608, Claim No. 109188, Motion No. M-68927


Synopsis


Claimant's motion to strike affirmative defenses is granted in part.

Case Information

UID:
2004-034-608
Claimant(s):
NIGEL JOSEPH
Claimant short name:
JOSEPH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109188
Motion number(s):
M-68927
Cross-motion number(s):

Judge:
MICHAEL E. HUDSON
Claimant's attorney:
NIGEL JOSEPH, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 24, 2004
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant has moved to strike Defendant's answer. The Court will grant the motion, in part.

The Court has reviewed the following documents in consideration of this motion:

1. Claim, verified March 9, 2004, filed April 14, 2004;

2. Answer, verified April 29, 2004, filed May 3, 2004;

3. Notice of Motion, undated, filed August 10, 2004;

4. Affidavit of Claimant, dated June 14, 2004, unnotarized, in support of the motion, with attachments;

5. Affirmation in Opposition of Reynolds E. Hahn, dated June 30, 2004, filed July 2, 2004.

This is a bailment claim. Mr. Joseph contends that Defendant was negligent in its handling of his personal property during a transfer from the Special Housing Unit at Attica Correctional Facility to Orleans Correctional Facility on or about December 29, 2003. Following the exhaustion of his administrative remedies on March 2, 2004, Claimant filed this action. Issue was joined on or about May 3, 2004, when Defendant filed and served an answer which included four affirmative defenses: comparative negligence, under CPLR article 14-A; contributory negligence of a third party, under CPLR 1601; lack of subject matter jurisdiction for failure to file the claim with the Clerk of the Court; and lack of subject matter jurisdiction for failure to set forth the sum of damages claimed. Claimant now seeks to strike the answer.

Although inartfully worded and somewhat confusing, the motion appears in part to seek dismissal of the third affirmative defense, which asserted a lack of subject matter jurisdiction for failure to file the claim with the Clerk of the Court. Defendant's Affirmation in Opposition admits that the defense was no longer valid, based upon information received after the claim was served upon the attorney general. Therefore, the third affirmative defense will be struck.

The fourth affirmative defense will likewise be struck, as the claim does set forth a demand for damages, in the amount of $300.00.

To the extent Claimant may have sought dismissal of the remaining affirmative defenses or to strike the answer in its entirety, that request will be denied. Claimant has failed to set forth a factual basis upon which such relief could be granted.

Based upon the foregoing, it is hereby

ORDERED, that Claimant's motion is granted to the extent that Defendant's third and fourth affirmative defenses are dismissed; and it is further

ORDERED, that the motion otherwise is denied.

November 24, 2004
Buffalo, New York

HON. MICHAEL E. HUDSON
Judge of the Court of Claims