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
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
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.