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
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 Defendant's Affirmation in Opposition admits that the defense was no
longer valid, based upon information received after the claim was served upon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
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
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.