New York State Court of Claims

New York State Court of Claims

MCLOYD v. THE STATE OF NEW YORK, #2005-030-905, Claim No. 108420, Motion No. —


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:
Herbert L. Schmell, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Leslie Stroth, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 2, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court read and considered the following papers on claimant's motion to strike affirmative defenses and to strike the answer: Notice of Motion, Affirmation and Exhibits; Affirmation in Opposition and Exhibits.

Claimant alleges that she was the victim of an assault and battery by a court officer on October 28, 2002. According to paragraph 3 of the Claim:
while the claimant was lawfully . . . [at] 100 Centre Street, New York, New York . . . on the 11th floor hallway of the said premises near Part 71, and more particularly, at the benches located thereat, the claimant was harassed, threatened, battered, abused, physically assaulted and menaced by an officer, agent, servant and/or employee of the State of New York, Court Officer Frank, Badge No. 2818, who also verbally abused the claimant and took property belonging to the claimant away from the claimant, without any reason, justification, provocation or cause.
Defendant's answer contains seven affirmative defenses and claimant now moves to strike six of them.

The seventh affirmative defense alleges that the court lacks jurisdiction because claimant failed to file the claim in accordance with Court of Claims Act §§ 10 and 11. The court's file reflects that the claim was filed on October 17, 2003[1]. Accordingly, this defense has no merit and it is stricken.

The fifth affirmative defense alleges that the claim "fails to comply with Court of Claims Act Section 11 by failing to include an adequate description of the manner in which the incident occurred, and therefore there is no proper claim over which the court has jurisdiction." Court of Claims Act §11(b) requires, in relevant part, that a claim set forth its "nature." The Court of Appeals recently reaffirmed the long-standing principle that the relevant standard of review in this regard is whether the claim sets forth sufficient information to allow a prompt investigation of the relevant facts and circumstances surrounding the defendant's allegedly wrongful conduct (Lepkowski v State of New York, 1 NY3d 201). The instant claim meets this standard. Accordingly, the fifth affirmative defense is without merit and it is stricken.

The first (culpable conduct on the part of the claimant), third (governmental immunity), fourth (absolute or qualified privilege) and sixth (defendant acted lawfully and with probably cause) affirmative defenses relate to matters which will be the subject of proof at trial. They are properly raised in the answer and they are neither scandalous, prejudicial nor demonstrably without merit (see generally Capital Tel. Co. v Motorola Communications & Elecs., 208 AD2d 1150; Becker v Elm Air Conditioning Corp., 143 AD2d 965). There is no basis upon which to strike them from the answer.

Accordingly, the motion is granted to the extent that the fifth and seventh affirmative defenses are stricken and it is otherwise denied.

Claimant's motion to strike the answer is denied as moot in view of defendant's response to claimant's disclosure notice.

The parties are again reminded of the April 1, 2005 deadline for claimant to complete disclosure and file a note of issue.

March 2, 2005
White Plains, New York

Judge of the Court of Claims

[1]The claim alleges that claimant served a notice of intention to file a claim on January 17, 2003, within 90 days of accrual, and defendant does not deny this allegation or raise any defense as to timeliness.