New York State Court of Claims

New York State Court of Claims

RAMIREZ v. THE STATE OF NEW YORK, #2006-030-514, Claim No. 111052, Motion No. M-70923


Synopsis



Case Information

UID:
2006-030-514
Claimant(s):
CESAR A. RAMIREZ
Claimant short name:
RAMIREZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111052
Motion number(s):
M-70923
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
CESAR A. RAMIREZ, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
February 21, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 6 were read and considered on Claimant's motion to strike certain affirmative defenses:
1,2 Notice of Motion, Affidavit by Cesar A. Ramirez, Claimant, and attached exhibits
  1. Affirmation in Opposition to Motion to Strike Affirmative Defenses by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits
  1. Petitioner's Reply (sic) by Cesar A. Ramirez, Claimant, and attachment
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 remedies.

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 instances enumerated."

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)." [id.].

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.


February 21, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims