New York State Court of Claims

New York State Court of Claims

GONZALEZ v. THE STATE OF NEW YORK, #2005-019-558, Claim No. 110725, Motion No. M-70449


Claimant's motion to strike State's verified answer and/or affirmative defenses 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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
August 10, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for an order striking the defendant's verified answer, as well as the two affirmative defenses contained therein. The defendant State of New York (hereinafter "State") opposes the motion.

This claim alleges that claimant was assaulted by an unknown inmate at the Elmira Correctional Facility on December 21, 2003. A notice of intention was served on the State by certified mail, return receipt requested, on January 26, 2004. Thereafter, this claim was filed with the Clerk of the Court on April 4, 2005. The State filed a verified answer on May 12, 2005 containing two affirmative defenses as will be discussed below.

Now, by way of this motion, claimant seeks to strike not only the State's two affirmative defenses, but also challenges that portion of the State's verified answer that responds to the claim's specific allegations with either denials or a statement that the State lacks knowledge or information sufficient to form a belief as to truth or falsity of each allegation.

With respect to claimant's objections to the State's general denials contained in the verified answer, CPLR 3018 (a) requires that "[a] party shall deny those statements known or believed by him to be untrue [and] specify those statements as to the truth of which he lacks knowledge or information sufficient to form a belief and this shall have the effect of a denial." A defendant is entitled to make general denials on matters that the party making the allegations has the burden of proof. (Northway Eng'g v Felix Indus., 77 NY2d 332, 336). Stated another way, by denying these allegations, the State is simply requiring the claimant to prove his allegations. (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3018:2). As such, claimant's motion to strike the general denials contained in the State's verified answer is denied.

Next, claimant moves to strike the State's two affirmative defenses. The State's first affirmative defense alleges claimant's own culpable conduct contributed in whole or part to his injuries, while the State's second affirmative defense alleges the culpable conduct of third parties also so contributed. It is well-settled that "[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." (CPLR 3024 [b]). 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). In view of the foregoing and based on these allegations, the court finds that the State's affirmative defenses are neither prejudicial or scandalous and are properly included by the State in its verified answer. Claimant's motion to strike the State's affirmative defenses is denied.

Accordingly, for the reasons stated above, it is ORDERED that claimant's motion to strike the defendant's verified answer and/or affirmative defenses, Motion No. M-70449, is DENIED in its entirety.

August 10, 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 April 4, 2005.
  2. Verified Answer, filed May 12, 2005.
  3. Notice of Motion No. M-70449, sworn to June 24, 2005, and filed July 11, 2005.
  4. Affidavit of Raymond Gonzalez, in support of motion, sworn to June 24, 2005, with attached exhibits.
  5. Affirmation of Geoffrey B. Rossi, AAG, in opposition to motion, dated July 21, 2005, and filed July 27, 2005.