New York State Court of Claims

New York State Court of Claims

PALADINO v. STATE OF NEW YORK, #2005-036-102, Claim No. 110824, Motion No. M-70372


Claimant's motion to strike Defendant's affirmative defenses is granted with respect to those that are true defenses which Defendant failed to support by any evidence or factual information. That portion of Claimant's motion to strike the general denials contained in the answer and for summary judgment are denied as inappropriate.

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):

Melvin L. Schweitzer
Claimant's attorney:
Ralph Paladino, pro se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: Jeane L. Strickland Smith Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 15, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


By this bailment action, Claimant, a prison inmate, seeks recovery for items he alleges were lost or damaged during his transfers from Otisville Correctional Facility to Fishkill Correctional Facility and then from Fishkill Correctional Facility to Green Haven Correctional Facility in November and December 2004. In its answer, Defendant State of New York set forth six affirmative defenses: 1) Claimant's culpable conduct, 2) Claimant's failure to exhaust his administrative remedies, 3) privilege for the judicial, quasi-judicial, or discretionary determinations of public officials, 4) assumption of risk, 5) failure to state a cause of action, and 6) untimeliness in that Claimant failed to serve and file a claim with the Court within 120 days after exhaustion of his administrative remedies. Claimant now moves to strike each of these affirmative defenses. In addition, he moves to strike the general denials contained in Defendant's answer and for summary judgment finding the State liable.
Motion to Strike Affirmative Defenses
CPLR 3018 (b) requires a party who is serving a responsive pleading to allege, as affirmative defenses, matters that, 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." Upon receipt of such a responsive pleading, the opposing party may simply note the allegations and plan his or her 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 defenses (CPLR 3041); and/or 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]; Rodriguez v. State of New York, UID #2004-032-109, Claim No. 109146, Motion No. M-68994 [Ct Cl 2004], Hard, J.).

On a motion to strike a defense, 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 [Ct Cl 2001]). A motion to strike should not be granted if any material issues of fact are unresolved or if there is any doubt as to the availability of a defense (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]).

Most courts have held there is no need to strike certain common "defenses" that, in truth, are neither matters the responding party must plead as an affirmative defense nor issues on which he bears the burden of proof. Perhaps the most common of these is "failure to state a cause of action." In the First, Third and Fourth Departments, inclusion of this allegation as a defense is considered "harmless surplusage," and any motion to strike it "should be denied as unnecessary" (Salerno v. Leica, Inc., 258 AD2d 896 [4th Dept 1999]; Tache-Haddad Enterprises v. Melohn, 224 AD2d 213 [1st Dept 1996]; Pump v. Anchor Motor Freight, Inc., 138 AD2d 849 [3rd Dept 1988]; but see, Bank of New York v. Lockwood Venture Housing, Inc., 222 AD2d 633 [2d Dept 1995]). "The assertion of that defense in an answer should not be subject to a motion to strike or provide a basis to test the sufficiency of the complaint" (Riland v. Todman & Co., 56 AD2d 350 [1st Dept 1977]).

As explained in Sinacore v. State of New York (176 Misc 2d 1, 4 [Ct Cl 1998]):
There are . . . many "boilerplate" allegations that are routinely included, properly or not, as affirmative defenses in most of the answers filed by attorneys of this State. A few examples are failure to state a cause of action, claimant or plaintiff's culpability, and third-party culpability. Some of these "defenses" are not proper affirmative defenses at all and do not belong in an answer. Nevertheless, these practices are common and accepted by the courts and Bar alike, because of the traditional sage advice: "[if] doubt[ful,] * * * treat it as a defense and plead" (Siegel, Practice Commentary, McKinney's Cons Laws of NY, Book 7B, CPLR C:3018:16, at 157). Pleading a matter that is not truly an affirmative defense does not shift the burden of proof to the defendant (Beece v. Guardian Life Ins. Co., 110 A.D.2d 865), so typically there is no risk in including matters that are not necessary--or even matters that are not applicable to the particular action--while the consequences of omitting something that should have been pleaded are grave.
In the action now before the Court, Defendant's First and Fifth affirmative defenses (claimant's culpable conduct and failure to state a cause of action) fall into the category of "harmless surplusage." The portion of the motion to strike these defenses will be denied as unnecessary, in keeping with First Department practice.

The Third and Fourth affirmative defenses (privilege for judicial, quasi-judicial, or discretionary determinations of public officials and assumption of risk) are well-recognized defenses but, to state it baldly, are simply nonsensical in the context of a garden-variety bailment claim. When it comes to caring for the personal belongings of people in their custody, police and prison officials act as traditional, common law bailees and have an unequivocal duty to care for the property and, upon demand, to return it to the rightful owner (Pollard v. State of New York, 173 AD2d 906 [3d Dept 1991] ["(T)he State has a duty recognized by the law of torts; accordingly, liability may be imposed by application of general tort principles and the doctrine of sovereign immunity cannot serve as a bar to claimant's action."]). The doctrine of assumption of the risk relieves a defendant of liability to a party who participates in some activity, such as playing a sport, where they are aware of the risks inherent in such activity, have an appreciation of the nature of such risks, and voluntarily assume those risks (Morgan v. State of New York, 90 NY2d 471 [1997]).

In the circumstances giving rise to this claim, the Court can perceive of no way in which a Claimant's own actions could contribute to loss or damage of his property while it was in the sole custody of the State. Further, it can hardly be asserted that a prison inmate voluntarily assumes any type of risk when he turns over his belongings to prison officials because he is being transferred from one facility to another: the decision to place the property in the State's temporary possession is not a voluntary choice. The Court must question whether defense counsel included those defenses for reasons of caution, as Professor Seigel suggests, or simply out of unthinking habit. If, in fact, there was any substance to, or support for, these defenses, Defendant has had an opportunity to oppose the instant motion by providing supporting evidence or alleging that such evidence would be forthcoming after discovery. In light of Defendant's failure to address or support these defenses, they are held to be without merit.
Exhaustion of Administrative Remedies
The answer's Second and Sixth affirmative defenses (failure to exhaust administrative remedies and untimeliness as a result of failure to exhaust)[1] allege specific jurisdictional defects on which Defendant would bear the burden of proof. In fact, Defendant would have waived the defense of untimeliness if it had not been raised in either the answer or a pre-answer motion (Court of Claims Act § 11 [c]). Claimant was well-advised to move to strike them, in order to immediately test their validity; because, if proven, they would have been dispositive of the action. Any failure to comply with the jurisdictional requirements of the Court of Claims Act deprives this Court of the power to hear the claim (Dreger v. New York State Thruway Auth., 81 NY2d 721 [1992]; Bogel v. State of New York, 175 AD2d 493 [3d Dept 1991]).

In his affidavit in support of this motion, Claimant states that he initiated an institutional claim on February 15, 2005; he did not receive an acknowledgment that his claim had been received until April 12, 2005; and he has received no further information with respect to that claim (Paladino affidavit, ¶ 12). The affidavit was signed on June 11, 2005, so apparently the non-response continued at least through that date. The claim was served on the Attorney General on March 23, 2005 and filed with the Clerk of the Court initially on April 14, 2005 and again on April 29, 2005, after it was returned because of a missing filing fee (id, ¶¶ 2, 26). According to Claimant, the claim is timely because "[t]he failure of DOCS [Department of Correctional Services] to respond nullifies any need for awaiting an administrative decision on this claim and further nullifies the need for such non-decision to be appealed" (id., ¶13). Claimant cites no authority for this proposition.

In response to the motion, Defendant makes only global assertions such as Claimant "has failed to submit any evidence that the affirmative defenses . . . lacks merit" and "it is an error of (sic) a court to strike a defense when material issues of fact remain unresolved" (Strickland Smith affirmation, ¶ 5). Claimant's statements that he filed an institutional claim and that he has received no response are a form of evidence, however, and counsel for Defendant has not bothered either to refute these statements or to provide other, additional information about the defenses. This failure is inexplicable since Defendant has access to all of the information relevant to the issue (i.e., the claim itself, information regarding any internal processing of the claim, and copies of any response that may have been made by DOCS). Claimant's motion to strike these jurisdictional defenses is an accepted way to test their validity, and the burden of proof rests on the party asserting an affirmative defense. Defendant's response to the motion makes no effort to meet that burden. Consequently, the Court will accept as true Claimant's affirmative statements regarding his effort to exhaust his administrative remedies.

The next step is to consider whether the facts recited by Claimant establish that the Second and Sixth affirmative defenses lack merit. The date from which the 120-day period following exhaustion of administrative remedies set forth in section 10 (9) is measured is, in normal situations, the date on which the inmate receives notice of the determination on appeal or of DOCS' decision not to review the initial grievance determination (Blanche v. State of New York, 17 AD3d 1069 [4th Dept 2005]; see also, 7 NYCRR §1700 et seq. [DOCS procedures for inmate claims]). This motion presents the question of when, or if, the 120-day period begins to run when there is simply no response to an inmate's institutional claim.

The applicable rule of the Department of Correctional Services (DOCS) provides for an initial review to be completed within 15 working days of receipt of the institutional claim and for the claim to be disposed of within three months (7 NYCRR §1700.4[b], [c]). This regulation, however, does not contain the type of provision, found in some other regulatory schemes, that either deems an agency's failure to comply with a timetable to be a decision rendered by the agency (see, 21 NYCRR § 1401.7 [agency's failure to respond to a Freedom of Information Law request within five business days of receipt of a request is deemed a denial of access by the agency]) or to substitute for actual exhaustion of administrative remedies (see, 9 NYCRR § 8006.4 [if the appeals unit of the Division of Parole fails to issue its findings and recommendation within four months of the date that a perfected appeal is received "the appellant may deem this administrative remedy to have been exhausted"]). Thus, DOCS' failure to comply with the timeframe set out in the relevant regulation does not automatically entitle a prison inmate to consider his administrative remedies to be exhausted (see, e.g., Tafari v. State of New York, UID #2002-019-591, Claim No. 106576, Motion No. M-65889 [Ct Cl 2002], Lebous, J. [claim dismissed as premature when DOCS' affidavit stated that the institutional claim was still under investigation]).

On the other hand, several Court of Claims decisions suggest that, in certain circumstances, a claimant may be in a position to claim that exhaustion has occurred simply because DOCS failed to respond to his institutional claim in a reasonable fashion or, at least, because the State presented no competent evidence that there had been a failure to exhaust administrative remedies. In McAllister v. State of New York (UID #2001-005-527, Claim No. 103773, Motion No. M-63158 [Ct Cl 2001], Corbett, J.), the claimant averred that he had filed an institutional claim, exhausted that remedy, and filed and served his claim within 120 days thereafter. As in the instant case, the claimant in McAllister did not provide any documentation to support his statements. The State submitted copies of certain documents and a certification by an Inmate Records Coordinator that those copies were accurate, along with what the Court described as a "gratuitous and parenthetical addition, ‘no actual claim was filed.' " The State did not, however, submit documentation or an affidavit that could be accepted as proof of that assertion, and the Court declined to elevate the IRC certification of a negative to that status. Consequently, accepting the facts as stated by the claimant, the Court held that he had exhausted his administrative remedies and filed and served his claim in a timely fashion. (Accord, Boyd v. State of New York, UID #2004-030-033, Claim No. 105924 [Ct Cl 2004], Scuccimarra, J. ["Claimant is deemed to have exhausted his available administrative remedy, given the Defendant's failure to address its affirmative defense."]; see also, Shell v. State of New York, Claim No. 103998, Motion No. M-65424, CM-65936 [Ct Cl March 4, 2003 Waldon, J. [claimant deemed to have exhausted his remedies when DOCS delayed 28 months in ruling on administrative claim]) .

Taken together, these decisions suggest that when a claimant has set forth facts from which it could be concluded that exhaustion of administrative remedies has occurred, the burden is on the State to respond in some credible, affirmative fashion to establish that exhaustion did not occur. If the State had moved to dismiss a claim on the grounds of failure to exhaust, it certainly would have to come forth with evidence of the relevant facts, evidence such as the affidavit of a prison employee stating that no facility claim had been received from the inmate or that one was being processed in a reasonable fashion. There is no reason to require any less of the State when it is called upon to respond to a motion to strike the affirmative defense. As was pointed out in the decision holding, inter alia, that failure to exhaust administrative remedies was an affirmative defense that had to be pled by the defendant State,
State and other governmental entities that are defendants in Court of Claims actions have complete and easily accessible knowledge of whether claimants have exhausted their administrative remedies. If there has been no exhaustion, or if there is any question about whether the requirement has been met, the matter can easily and properly be raised by Defendant, either in its answer or by a pre-answer motion (see, Matter of Warwick v. Henderson, 117 AD2d 1001, supra).

(Edwards v. State of New York, UID #2002-013-012, Motion No. M-63697 [Ct Cl 2002], Patti, J.) In that case, the State was able to provide the Court with a statement confirming that claimant had, in fact, exhausted his administrative remedies; this, it was noted, "demonstrates the ease with which [the State] can consult the relevant records."

Because Claimant's factual statements were not refuted in any fashion by Defendant, the Court deems that he exhausted his administrative remedies prior to instituting this claim and that the claim is timely. Consequently, the Court grants Claimant's motion to strike Defendant's Second and Sixth affirmative defenses.
Motion to Strike Other Portions of Defendant's Answer

and Motion for Summary Judgment

These requests for relief apparently arise from a basic misunderstanding on his part about the normal and expected process of a lawsuit. In moving to strike Defendant's general denials, Claimant apparently believes that Defendant was in some fashion obliged to research each of the claim's allegations and either confirm or refute it based on information gathered from that independent investigation. For example, Claimant argues that defense counsel could easily have confirmed that the allegations in paragraphs 3 and 4 of the claim (relating to shipping information and dates), were correct: "Having made a denial without information or conferring with his client or obtaining such information, the denial should be struck and paragraphs 3 and 4 deemed admitted" (Paladino affidavit, ¶ 30 [a]). Similarly, in support of the motion for summary judgment, Claimant states that the Attorney General's failure "to properly answer this claim" entitles him to a judgment holding the State liable (id, ¶ 31).

It is Claimant, not Defendant, who has the burden of proving the allegations on which this claim rests. It is not Defendant's responsibility to prove or disprove those allegations, either at the pleading stage or at trial. A defendant is fully entitled to make general denials on "matters on which the party making the allegations, not the party denying them, has the burden of proof" (Northway Engineering v. Felix Indus., 77 NY2d 332, 336 [1991]; CPLR 3018 [a]). When an allegation has been denied, the effect is simply to require the party making the allegation to prove it by competent evidence (Siegel, Practice Commentary, McKinney's Cons Laws of NY, Book 7B, CPLR 3018, C3018:2). "If the denials are in proper form, or substantially so, plaintiff has no remedy but to prepare the proof and get ready for trial" (Firth v. State of New York, UID #2001-015-139, Claim No. 103492, Motion No. M-63029 [Ct Cl 2001] Collins, J.).

Similarly, on a motion for summary judgment, it is the moving party (in this case Claimant) who must "establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment' in his favor . . . and he must do so by tender of evidentiary proof in admissible form" (Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979], quoting CPLR 3212 [b]). The evidence, which is to be viewed in a way that most benefits the non-moving party (Crosland v. New York City Transit Auth., 68 NY2d 165, 168, n. 2 [1986]), must demonstrate the absence of any material issues of fact (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; Muhammad v. Bucknor, 228 AD2d 333 [1st Dept 1996]). In the instant case, for example, Claimant would need to submit evidence in

admissible form to prove that certain property was delivered to the bailee and that it was returned in a damaged condition or that the bailee failed to return it. Only then would the burden shift to the State to demonstrate that it exercised ordinary care (Board of Educ. of Ellenville Cent. School v. Herb's Dodge Sales & Serv., 79 AD2d 1049, 1050 [3d Dept 1981]). Where, however, the moving party does not meet "the initial burden of setting forth evidentiary facts sufficient to establish entitlement to judgment as a matter of law," then the motion must be denied (Roman v. Hudson Telegraph Associates, 15 AD3d 227 [1st Dept 2005]).

Claimant's motion is granted to the extent that the Second, Third, Fourth and Sixth affirmative defenses contained in Defendant's answers are stricken, and otherwise denied.

September 15, 2005
New York, New York

Judge of the Court of Claims

The Court has read and considered the following papers in connection with this motion:

1. Notice of Motion and Supporting Affidavit (captioned "Rebuttal to Answer") of Ralph Paladino, pro se

2. Affirmation in Opposition of Jeane L. Strickland Smith, Esq., AAG

3. Reply (Rebuttal) Affidavit of Ralph Paladino, pro se

Filed papers: Claim; Answer

[1] Court of Claims Act § 10 (9) provides as follows: "A claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy."