New York State Court of Claims

New York State Court of Claims

BAKER v. THE STATE OF NEW YORK, #2006-009-054, Claim No. 110883, Motion Nos. M-71807, M-71808


Claimant’s motion seeking an order dismissing the affirmative defense of culpable conduct was denied, and, following an in camera review, claimant’s motion for production of certain records was denied.

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):
M-71807, M-71808
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General
BY: Thomas M. Trace, Esq.,
Senior Attorney, Of Counsel.
Third-party defendant’s attorney:

Signature date:
September 26, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought a motion (M-71807) seeking an order dismissing the sole affirmative defense asserted by the defendant in its verified answer. Claimant has brought a second motion (M-71808) seeking an order directing the defendant to produce certain records to the Court for an in camera review. At claimant’s request, and for purposes of judicial economy, both of these motions will be addressed herein.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affidavit in Support, with Exhibits (M-71807) 1,2

Affirmation in Opposition, with Exhibits (M-71807) 3

Notice of Motion, Affidavit in Support, with Attachments (M-71808) 4,5

Affirmation in Opposition, with Exhibits (M-71808) 6

Directive 4066 (referred to as Exhibit G to Item 6, submitted for in camera inspection only) (M-71808) 7

Claimant’s Reply (M-71807/M-71808) 8

In his filed claim, claimant alleges that on April 17, 2004, he fell on a floor mat at Mid-State Correctional Facility, where he was then incarcerated. Claimant further alleges that this fall, and the injuries suffered by him as a result of that fall, was caused by defendant’s failure to properly maintain that floor mat.

In its verified answer, defendant has asserted one affirmative defense, alleging that whatever injuries or damages sustained by claimant were caused, in whole or in part, by his own culpable conduct.

A motion to dismiss a defense must be made on the grounds that a defense is not stated or that it has no merit (CPLR 3211[b]). It is error for a court to strike a defense in situations where material issues of fact remain unresolved (Matter of Harrison v State of New York, 262 AD2d 833; Connelly v Warner, 248 AD2d 941). When a claimant moves to dismiss a defense, the claimant bears the burden of coming forward with sufficient proof to demonstrate that the defense cannot be maintained, while the defendant is entitled to the benefit of every reasonable construction of the pleading. If there is any doubt as to the availability of a defense, it should not be dismissed (Pellegrino v Millard Fillmore Hosp., 140 AD2d 954).

In the instant motion (M-71807), although claimant takes issue with the defense asserted by defendant, and argues that it cannot be maintained, he has failed to establish, at this stage of the proceedings, that the defense has no merit. The essential nature of this claim (i.e., a slip and fall resulting from an allegedly defective floor mat) necessarily brings into question the issue of whether claimant’s actions contributed in any degree to the occurrence.

Claimant is advised, however, that this defense is merely an assertion alleged by the defendant, for which the defendant retains its burden of proof. Defendant, however, must be provided with the opportunity to develop its defense that claimant may have contributed to his injuries.

In Motion No. M-71808, claimant seeks an order directing the defendant to produce certain records. Specifically, claimant seeks the production of Departmental Directive 4066 from the Department of Correctional Services (“DOCS”), which defendant had refused to provide in its previously served Bill of Particulars. Defendant contends that release of this directive is restricted, as it is not distributed to the general inmate population.

In response to this motion, defendant has submitted the requested directive to the Court for an in camera inspection (Item 7). This directive, titled “Facility Safety and Environmental Services Inspections” governs the inspection requirements at DOCS facilities. The distribution of this directive has been restricted by the Commissioner, who has been granted broad discretion in formulating and implementing policies pertaining to the security of correctional facilities (Arteaga v State of New York, 72 NY2d 212, 217). Defendant has established to the satisfaction of the Court that this directive falls within the Commissioner’s powers and duties related to the management of correctional facilities, and that the Commissioner has made a determination to restrict access to this directive.

Even though the Commissioner has restricted access to this document, this Court has the authority, under appropriate circumstances, to direct its release. Accordingly, the Court has reviewed this document, and while it may be remotely relevant, disclosure of this directive will have no direct bearing on the outcome of this case.

Balancing the general rule that all relevant information is discoverable, against the Commissioner’s duties of maintaining order and security in correctional facilities as well as protecting the safety of inmates and employees therein, the Court determines that disclosure of Directive 4066 need not be made by the defendant. The Court believes that claimant may obtain all relevant information pertaining to this incident through other document discovery, or through testimony at trial.

Therefore, in accordance with the foregoing, it is

ORDERED, that Motion No. M-71807 and Motion No. M-71808 are both hereby DENIED, and it is further

ORDERED, that based upon the determination made herein, the Clerk of the Court is directed to return to the defendant Directive 4066 (Item 7), the document which was submitted for in camera review.

September 26, 2006
Syracuse, New York

Judge of the Court of Claims