New York State Court of Claims

New York State Court of Claims

DOE v. THE STATE OF NEW YORK, #2005-028-565, Claim No. 105483, Motion No. M-70501


Synopsis


Claimant's motion to dismiss Defendant's affirmative defenses asserting lack of personal and subject matter jurisdiction is granted as the Claimant was the beneficiary of Court of Claims Act § 10(5).

Case Information

UID:
2005-028-565
Claimant(s):
JOHN DOE
Claimant short name:
DOE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105483
Motion number(s):
M-70501
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
DAVIDSON, FINK, COOK, KELLY &
GALBRAITH, LLPBY: Dennis J. Annechino, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Frederick H. McGown, III, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 5, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read by the Court on Claimant's application:

1) Notice of motion and supporting affirmation of Dennis J. Annechino, Esq. (Annechino Affirmation) with annexed Exhibit A filed July 13, 2005;

2) Letter of No Opposition from Assistant Attorney General Frederick H. McGown, III received August 15, 2005.

Filed Papers: Verified Claim filed January 17, 2002; Verified Answer filed February 19, 2002
.
The underlying Claim seeks damages for injuries sustained by Claimant, when, it is alleged, as a juvenile he was improperly placed in an adult correctional facility. Claimant seeks an order dismissing Defendant's affirmative defenses which assert the Court lacks subject matter and personal jurisdiction stemming from Claimant's alleged failure to timely commence the action. The application is unopposed.

A motion to dismiss a defense must be made on the ground that a defense is not stated or that it has no merit (CPLR 3211[b]; Winter v Leigh-Mannell, 51 AD2d 1012). The movant bears the burden of coming forward with sufficient proof to demonstrate that the defense cannot be maintained (Arquette v State of New York, 190 Misc 2d 676). It is well settled that "[o]n a motion to dismiss a defense pursuant to CPLR 3211 (b), all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof" (Capital Tel. Company v Motorola Communications & Elecs., 208 AD2d 1150) and it is error for a court to strike a defense when material issues of fact remain unresolved (Harrison v State of New York, 262 AD2d 833; Connelly v Warner, 248 AD2d 941). "If there is doubt as to the availability of a defense, it should not be dismissed" (Duboff v Board of Higher Educ. of City of New York, 34 AD2d 824)
Court of Claims Act § 10(5) provides that a Claimant who is under a legal disability may present a claim within two years after such disability is removed. It has long been settled that infancy falls under the auspices of a disability for the purposes of this section (Barrett v State of New York, 161 AD2d 61, affd 78 NY2d 1111; Kaplan v State of New York, 152 AD2d 417; Weber v State of New York, 267 App Div 325).

Here, Claimant has established that he was a minor at the time the claim accrued and, that the instant Claim was commenced within two years of removal of that disability. As such, the application of section 10(5) to these facts warrants a finding that the Claim was timely commenced.

Accordingly, Claimant's motion is granted and the fourth, fifth, sixth and seventh affirmative defenses shall be and hereby are dismissed.

The Court shall conduct a status conference by telephone on December 1, 2005 at 10:00 a.m.


October 5, 2005
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims