5,6 Filed papers: Claim, Answer
This is a claim alleging that Defendant's agents at Green Haven Correctional
Facility (hereafter Green Haven) negligently or intentionally lost and/or
damaged Claimant's personal property during a transfer to Sullivan Correctional
Facility (hereafter Sullivan). In addition to general denials, in its Answer
the Defendant asserts five (5) affirmative defenses, including the contributory
negligence of claimant or others, immunity, assumption of risk, that the claim
is barred by regulations promulgated by the New York State Department of
Correctional Services (hereafter DOCS), and failure to exhaust administrative
Claimant amplifies the facts sworn to in his claim in the affidavit he attaches
to this motion, arguing that his recitation and the documents attached show that
the first affirmative defense, asserting Claimant's culpable conduct or the
culpable conduct of others, "is outrageous and should be stricken from the
record as . . . misleading, and/or as a matter of law should be stricken from
the record for defendant's affirmative defenses contradict the true facts under
which the instant claim/incident took place." [Affidavit by Cesar A. Ramirez,
¶ 15]. It also appears that Claimant is arguing, generally, that all the
defenses should be stricken.
An affirmative defense is raised in an Answer to provide adequate notice to the
Claimant of issues of law or fact that the Defendant may raise at trial or in
later motion practice. Cipriano v City of New York, 96 AD2d 817 (2d Dept
1983). Indeed, Civil Practice Law and Rules §3018(b), concerning
responsive pleadings, provides in pertinent part that a ". . . party shall
plead all 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 such as . . . collateral estoppel, culpable conduct . . . or statute of
limitation. The application of this subdivision shall not be confined to the
A motion to dismiss such defenses may be made on the ground that ". . . a
defense is not stated or has no merit." Civil Practice Law and Rules
§3211(b). When evaluating such a motion, all of defendant's allegations
must be deemed to be true and defendant is entitled to all reasonable inferences
to be drawn from the proof submitted. Capital Telephone Co. v Motorola
Communications and Electronics, Inc., 208 AD2d 1150 (3d Dept 1994);
Grunder v Recckio, 138 AD2d 923 (4th Dept 1988); 182 Fifth Avenue, LLC
v Design Development Concepts, Inc., 300 AD2d 198 (1st Dept 2002);
Arquette v State of New York, 190 Misc 2d 676, 688 (Ct Cl 2001). It is the
movant who has the burden of coming forward and demonstrating that the defense
cannot be maintained. Arquette v State of New York, supra at 688
(Ct Cl 2001). ". . . ‘If there is doubt as to the availability of a
defense, it should not be dismissed'. . . (citations omitted)."
As noted by the Assistant Attorney General, DOCS directives concerning inmate
personal property are used throughout the system to govern the processing of an
inmate's personal property. [See Affirmation in Opposition by Jeane L.
Strickland Smith, Assistant Attorney General, Exhibits B, C, and D]. They also
contain rules about excess property, and contain mechanisms for the disposal of
same at an inmate's behest. According to the Claim, at least some of the
property was placed in the custody of the United States Postal Service.
Additionally, some of the property claimed does not have value under the
regulations, such as photographs.
Finally, there remain factual disputes as to whether Claimant exhausted his
administrative remedies as well, although certainly the letter from the State
Commissioner's Office advising that Claimant's only recourse is to file a claim
in the Court of Claims is suggestive that same have indeed been exhausted.
[See Petitioner's Reply, Attachment 1].
Since the Claimant has not shown how the defenses asserted in the Answer lack
merit or are otherwise deficient, but merely restates a factual dispute
requiring a plenary trial, Claimant's motion to strike the defenses [M-70923] is
in all respects denied.