This claim for property loss and damage arose in May 2004 when claimant was
transferred from Upstate Correctional Facility to Auburn Correctional Facility.
In its answer, defendant asserted six affirmative defenses: 1) lack of
jurisdiction over New York State Department of Correctional Services and Auburn
2) immunity based on
the exercise of discretion by State employees; 3) non-liability for property
that claimant did not rightfully possess; 4) claimant's culpable conduct; 5)
superseding, intervening causes; and 6) payment and release.
Claimant now moves for an order striking these affirmative defenses because
they are "devoid of any merit," arguing in his affidavit in support of the
motion that defendant would not be able to prove several of the defenses. With
respect to his request for summary judgment in his favor, also mentioned in the
notice of motion, claimant provides no arguments or proof in evidentiary form to
support this request for relief.
Affirmative defenses are to be set forth when there are matters which, if not
pleaded, "would be likely to take the adverse party by surprise or would raise
issues of fact not appearing on the face of a prior pleading" (CPLR 3018(b)).
Parties on whom an opponent's affirmative defenses are served may simply accept
that knowledge and plan their case accordingly; move for a more particular
statement if the allegations are confused or unclear (CPLR 3024 [a]); serve a
demand for a bill of particulars with respect to the defense (CPLR 3041); and/or
may move to dismiss or strike a defense on the ground that it "is not stated or
has no merit" (CPLR 3211 [b]; Winter v Leigh-Mannell, 51 AD2d 1012 [2d
Dept 1976]). Such a motion should not be granted when material issues of fact
remain unresolved (Matter of Harrison v State of New York, 262 AD2d 833
[3d Dept 1999]; Connelly v Warner, 248 AD2d 941 [4th Dept 1998];
Krantz v Garmise, 13 AD2d 426 [1st Dept 1961]; Ruffing v Union
Carbide Corp., 186 Misc 2d 679 [Sup Ct, Westchester County 2000]).
The moving party bears the initial burden of challenging the factual basis
of the defense, and typically this is met by use of an affidavit based on
personal knowledge or other evidentiary proof (Arriaga v Michael Laub
Co., 233 AD2d 244 [1st Dept 1996]). In any event, the movant must come
forward with sufficient proof to demonstrate that the defense cannot be
maintained (1 Weinstein-Korn-Miller, CPLR Manual § 21.05; City of New
York v Mills, 1996 WL 882642 [Civ Ct, NY County, 1996, Stallman, J.]). The
defendant is entitled to the benefit of every reasonable construction of the
pleading, and "[i]f 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 [2d Dept 1970]; see also Pellegrino v Millard
Fillmore Hosp., 140 AD2d 954 [4th Dept 1988]).
Many matters that are typically pled as affirmative defenses, that do not raise
any new issue, are not true affirmative defenses. The frequent allegation that
a claim or complaint "fails to state a cause of action" is one such example. As
a general rule, recitation of these "defenses" in the answer does not alter the
issues that are in dispute and which must be proved by the parties, and unless
there is prejudice, "there is no reason to permit a motion to strike" (2
Weinstein-Korn-Miller, NY Civ Prac ¶3018.14).
In the instant situation, claimant could, if he wishes to do so, serve on
defendant a demand for a bill of particulars with respect to the defenses in
order to learn the factual allegations on which each is based. If any of those
facts can be disproved by documentary evidence, claimant may then make a formal
motion to strike. If not, he may simply prepare to rebut the underlying facts
when the matter comes to trial. If defendant fails to provide any particulars to
support a defense, then that defense may not be proven at trial.
Claimant's motion is denied.
1. Notice of Motion and Supporting Affidavit of Michael Washington, pro
2. Affirmation in Opposition of Kathleen M. Arnold, Esq., AAG, with annexed
Filed papers: Claim; Answer