New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2005-019-575, Claim No. 110190, Motion No. M-70707


Synopsis


Claimant moves to strike the affirmative defenses contained in the State's verified answer, as well as a motion for partial summary judgment pursuant to CPLR 3212, motion denied.

Case Information

UID:
2005-019-575
Claimant(s):
SHAWN GREEN
Claimant short name:
GREEN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110190
Motion number(s):
M-70707
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
SHAWN GREEN, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
October 14, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, moves to strike the affirmative defenses contained in the State's verified answer, as well as a motion for partial summary judgment pursuant to CPLR 3212. The defendant State of New York (hereinafter "State") opposes the motion.

This claim asserts various causes of action which arose from claimant's transfer to and during his incarceration in Southport Correctional Facility (hereinafter "Southport") in September 2004. The claim was filed on December 8, 2004. The State filed a verified answer on December 27, 2004 containing six affirmative defenses.


To the extent that claimant's motion may be construed as a motion to strike the affirmative defenses contained in the State's verified answer it must be denied. 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). The court has reviewed the State's affirmative defenses and finds that none are prejudicial or scandalous in any respect whatsoever and are properly included in the State's verified answer. Claimant's motion to strike the State's affirmative defenses is denied.


To the extent that claimant's motion may be construed as seeking partial summary judgment, it will be denied as well. Generally, on a motion for summary judgment, the moving party must present evidentiary facts to establish that party's right to judgment as a matter of law, upon which the opposing party must present evidentiary proof in admissible form that demonstrates the existence of a factual issue. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065). If the moving party fails to satisfy its burden, the motion must be denied regardless of the adequacy of the opposing papers. (Alvarez v Prospect Hosp., 68 NY2d 320, 324). Here, claimant's motion for summary judgment consists only of his personal affidavit and memorandum of law. A review of claimant's papers reveals that he has offered absolutely no evidentiary proof demonstrating his right to summary judgment as a matter of law.


Accordingly, in light of the foregoing, it is ORDERED that the claimant's motion to strike the affirmative defenses and/or for partial summary judgment, Motion No. M-70707, is DENIED.


October 14, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with this motion:
  1. Claim, filed December 8, 2004.
  2. Verified Answer, filed December 27, 2004
  3. Notice of Motion No. M-70707, dated August 31, 2005, and filed September 14, 2005.
  4. Affirmation of Shawn Green, in support of motion, sworn to August 31, 2005, with attached exhibits.
  5. Memorandum of Law, in support of motion, dated August 31, 2005.
  6. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated October 4, 2005, and filed October 6, 2005.
  7. "REPLY", of Shawn Green, in support of motion, sworn to October 11, 2005, and filed October 14, 2005.