New York State Court of Claims

New York State Court of Claims

JONES v. STATE OF NEW YORK, #2005-018-471, Claim No. 105792, Motion No. M-69856


Claimant's motion to dismiss Defendant's second affirmative defense pursuant to CPLR 3211(b) is denied.

Case Information

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:
Defendant's attorney:
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 3, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant brings this motion pursuant to CPLR 3211(b) seeking an order dismissing

Defendant's second affirmative defense on the ground that Defendant has set forth no facts that establish the defense.[1] Defendant opposes the motion.

The claim alleges that Claimant suffered injuries as a result of the State's gross negligence and reckless indifference for failing to properly clean the gymnasium floor at Ogdensburg Correctional Facility. Claimant allegedly fell while playing basketball as a result of cleaning fluid/wax residue left on the gymnasium floor.

Defendant interposed an Answer to the claim with three affirmative defenses. Defendant's second affirmative defense provides:
"Upon information and belief, whatever injuries and/or

damages the Claimant may have sustained at the time and

place alleged in the Claim were caused in whole or in part

or were contributed to by the culpable conduct, and want

of care on the part of the Claimant. That Claimant's potential

recovery in this action should be diminished in the portion

that the culpable conduct attributed to the Claim and at the trial

of this Claim bears to the culpable conduct which caused the

alleged injuries and/or damages."

CPLR 3211(b) provides that "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." In determining such a motion, "the defendant is entitled to the benefit of every reasonable intendment of the pleading," (Becker v Elm Air Conditioning Co., 143 AD2d 965, 966). If there is any doubt as to whether the defense is meritorious it should not be dismissed (see Duboff v Bd. of Higher Educ. of the City of NY, 34 AD2d 824; Klapper v Shapiro, 154 Misc 2d 459; Siegel, NY Prac § 269, at 428 [3d ed.]) The proper inquiry on such a motion is whether the defendant actually has a defense rather than whether one is properly stated (Becker, 143 AD2d at 966). Statements of legal conclusions are acceptable, even if inconsistent (River House Realty Co., Inc. v Lico Contracting Inc., 172 AD2d 426).

In his motion, the Claimant asserts that Defendant has set forth no facts to establish the defense of culpable conduct. Claimant attaches Defendant's bill of particulars which provides that Defendant does not contend that Sergeant Eugene Cross or Correction Officer Irwin Shaver actually witnessed Claimant's fall, but rather, that those employees along with Larry King, Recreation Program Leader, were witnesses to the conditions existing at the time of Claimant's fall. Claimant contends that since these employees did not see his fall, Defendant can only speculate that his fall was the result of tripping over his own feet, someone else's feet or "otherwise" (Claimant's affidavit ¶¶ 5-6, Exhibit A ¶¶ 2 & 3).

There are no factual averments in Claimant's affidavit relating to his fall. The fact that Defendant's employees did not see Claimant's fall does not preclude Defendant's ability to establish Claimant's comparative negligence at trial through cross-examination or introducing documents, photographs, or even the shoes Claimant was wearing. Accordingly, Claimant's motion is DENIED.

June 3, 2005
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion................................................................................................1

Affidavit of Charles Jones, in support, with exhibits attached thereto...............2

Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General,

in opposition............................................................................................3

[1] Claimant's notice of motion actually indicates that he is seeking an order dismissing Defendant's culpable conduct defense and obtaining discovery of certain employees of the State. My chambers advised Claimant by letter dated March 18, 2005, that the discovery portion of the motion would not be heard without compliance with Uniform Rules for the Court of Claims § 206.8(b). An order should not be necessary to obtain disclosure from Defendant's employees unless there is a problem.