New York State Court of Claims

New York State Court of Claims

JO v. THE STATE OF NEW YORK, #2005-019-543, Claim No. 110456, Motion No. M-70182


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

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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
June 24, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, appearing pro se, moves for an order striking all six affirmative defenses contained in the defendant's Verified Answer. The State of New York (hereinafter "State") opposes the motion.

This claim appears to arise from an underlying dispute between claimant and the Corning-Painted Post Area School District regarding claimant's daughter's education. More particularly, on November 9, 2004, claimant alleges that a State Department of Education spokesperson, Tom Dunn, released inaccurate information to the print and television news media regarding claimant's petitions filed with the commissioner of education regarding her daughter's education. Claimant alleges Mr. Dunn's slanderous and defamatory comments caused injury to her reputation warranting compensatory and punitive damages.[1]

This claim was filed with the Clerk of the Court on February 4, 2005 and served upon the Attorney General's office on February 9, 2005 by certified mail, return receipt requested. The State filed a Verified Answer on March 14, 2005 containing six affirmative defenses.

It is well-settled that "[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." (CPLR 3024 [b]). Here, the State's first affirmative defense asserts a failure to state a cause of action. The third and fourth affirmative defenses allege that the State's actions were privileged. The fifth affirmative defense asserts the State acted in good faith and, as such, if liable entitles claimant to nominal damages only. The final affirmative defense raises truth as a defense to this claim. Affirmative defenses are not dispositive of a claim and are merely assertions of a party, absent prejudice, that will not be stricken. (CPLR 3024; 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 3018.14). Consequently, the court finds that the State's first, third, fourth, fifth, and sixth affirmative defenses are proper and claimant's motion to strike said State's affirmative defenses should be denied.

The second affirmative defense asserts that the claim fails to include any particularization of the nature of the claim pursuant to CCA 11. CCA 11 (b) requires, among other things, that a claim "[s]hall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed." Here, the claim alleges that it arose on November 9, 2004 when a State Department of Education spokesperson, Tom Dunn, released inaccurate information to the print and television news media regarding claimant's school petitions. In this court's view, the pleading adequately asserts that the nature of the claim is to recover for slander and defamation. Accordingly, the court finds that the second affirmative defense lacks merit and, as such, claimant's motion to strike the second affirmative defense will be granted.

Consequently, for the reasons stated above, it is ORDERED that claimant's motion to strike the defendant's affirmative defenses, Motion No. M-70182, is GRANTED IN PART and DENIED IN PART in accordance with the foregoing.

June 24, 2005
Binghamton, New York

Judge of the Court of Claims

The court has considered the following papers in connection with this motion:
  1. Claim, filed February 4, 2005.
  2. Verified Answer, filed March 14, 2005.
  3. Notice of Motion No. M-70182, dated May 4, 2005, and filed May 16, 2005.
  4. "MOTION TO STRIKE THE DEFENSE FROM THE ANSWER" of Mee Jo, in support of motion, dated May 4, 2005.
  5. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated June 8, 2005, and filed June 10, 2005.

[1]Punitive damages are not permissible in the Court of Claims. (Sharapata v Town of Islip, 56 NY2d 332).