New York State Court of Claims

New York State Court of Claims

McIVER v. THE STATE OF NEW YORK, #2006-016-032, Claim No. 110890, Motion Nos. M-71045, M-71046


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):
Alan C. Marin
Claimant’s attorney:
Derek McIver, Pro se
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Joseph F. Romani, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 5, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)

In motion no. M-71045, claimant Derek McIver moves to amend the ad damnum clause of his claim from $5,593.41 to $35,723.41, and in motion no. M-71046, he moves to dismiss the State’s affirmative defenses. Mr. McIver’s underlying claim alleges that items of his personal property were lost or damaged when he was transferred first from Woodbourne Correctional Facility to Lakeview C.F., and then from Lakeview to Livingston C.F. CPLR 3025(b) provides that leave to amend “shall be freely given upon such terms as may be just . . .” Amendment under such section is generally granted absent any prejudice. See, e.g., 5 Weinstein-Korn-Miller, NY Civ Prac ¶3025.14. With regard to amending the ad damnum clause, “[p]rejudice . . . is not found in the mere exposure of the defendant to greater liability. Instead, there must be some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position . . .” Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23, 444 NYS2d 571, 573 (1981). In this case, defendant has identified no prejudice from which it would suffer should claimant’s motion be granted.[1]
* * *
Claimant has also moved to dismiss the State’s affirmative defenses, of which there are three. The first is that the claim fails to comply with §11 of the Court of Claims Act (the “Act”) in that it is insufficiently particular. The second is that the actions of defendant’s agents and employees were privileged as judicial, quasi-judicial or discretionary. The third is that the negligence of third parties for whom the State is not responsible contributed to claimant’s damages.

Affirmative defenses are not dispositive of a claim, and like the allegations in the claim itself, they are merely assertions made by a party. Striking affirmative defenses is generally not warranted in the absence of a showing of prejudice by the claimant. See, e.g., 5 Weinstein-Korn-Miller, NY Civ Prac ¶3018.14 at 30-432.

In this case, however, defendant’s first affirmative defense has jurisdictional implications and is thus appropriate to address. Section 11(b) of the Act provides that a “claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed.” To the extent that the State’s first affirmative defense (failure “to include any particularization of the State’s conduct as it regards the accident . . .”) can be construed to allege a failure to state the “nature of [the claim],” in Heisler v State of New York, 78 AD2d 767, 433 NYS2d 646, 648 (4th Dept 1980), it was stated that “[w]hat is required is not absolute exactness, but simply a statement made with sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State.” Having reviewed McIver’s claim, I conclude that it satisfies the requisites of §11.b of the Act.[2]
* * *
In view of the foregoing, having reviewed the submissions[3], IT IS ORDERED that motion no. M-71045 be granted and the claim shall be deemed amended to reflect $35,723.41 in the ad damnum clause. IT IS FURTHER ORDERED that motion no. M-71046 be granted only to the extent that the first affirmative defense in defendant’s verified answer be deemed stricken, and such motion shall otherwise be denied.

May 5, 2006
New York, New York
Judge of the Court of Claims

  1. [1]In seeking to increase the ad damnum clause, claimant does not seek to add additional lost or damaged items to his claim, but rather to increase the sum claimed for various items.
  2. [2]It should be noted that in its opposition papers, defendant made no argument as to any §11 deficiencies.
  3. [3]The following were reviewed: claimant’s notice of motion no. M-71045 with affidavit in support; defendant’s affirmation in opposition to motion no. M-71045; claimant’s notice of motion no. M-71046 with affidavit in support; and defendant’s affirmation in opposition to motion no. M-71046.