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
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.