New York State Court of Claims

New York State Court of Claims

TAMARR v. THE STATE OF NEW YORK, #2006-009-011, Claim No. 111584, Motion No. M-71013


Synopsis


Claimant's motion for an order dismissing the State's affirmative defenses was denied.

Case Information

UID:
2006-009-011
Claimant(s):
KAREEM TAMARR
Claimant short name:
TAMARR
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111584
Motion number(s):
M-71013
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
KAREEM TAMARR, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
February 16, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking an order dismissing the two affirmative defenses asserted by the defendant in its Verified Answer.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support 1,2


Affirmation in Opposition, with Exhibits 3

In his claim, claimant seeks damages for personal injuries suffered by him in an assault by an unidentified inmate on June 19, 2005, when he was incarcerated at Marcy Correctional Facility. Claimant alleges negligence against the State in failing to provide adequate security and supervision. Claimant also alleges that the State violated his Constitutional rights under the Eighth Amendment. In its Verified Answer, the State has asserted two affirmative defenses. In its First Affirmative Defense, the State contends that the Court of Claims lacks jurisdiction over civil rights violations protected by the Federal constitution. In its Second Affirmative Defense, the State asserts the defense of culpable conduct, in that it claims any injuries or damages sustained by claimant were caused in whole or in part by his own actions.

Pursuant to CPLR Rule 3211(b), a party may move to dismiss a defense on the ground that a defense is not stated or that it has no merit. The proponent of such a motion 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) and it is error for a court to strike a defense if material issues of fact remain unresolved (Harrison v State of New York, 262 AD2d 833).

In this motion, claimant has not submitted any proof whatsoever that either defense cannot be maintained.

Claimant contends that this Court has jurisdiction over this claim based upon an inmate-on-inmate assault under Sanchez v State of New York, (99 NY2d 247). In its First Affirmative Defense, however, defendant only argues that this Court does not have jurisdiction over any cause of action asserting a violation of Federal Constitutional rights, an allegation which claimant has not addressed in this motion.

With regard to the Second Affirmative Defense of culpable conduct, claimant merely states that he bears no culpable conduct, and that this fact "will be proven at the trial of this action" (Affidavit in Support [Item 2], p 2, par 9).

Since neither of these affirmative defenses are dispositive of the claim, and since claimant has failed to demonstrate that either defense cannot be maintained, the Court finds that both affirmative defenses were properly raised by the defendant in its Verified Answer. At this stage of the proceedings, both defenses have an appearance of merit and may not be dismissed.

Accordingly, it is

ORDERED, that Motion No. M-71013 is hereby DENIED.


February 16, 2006
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims