New York State Court of Claims

New York State Court of Claims

MINIX v. THE STATE OF NEW YORK, #2006-032-060, Claim No. 110439, Motion No. M-71188


Synopsis



Case Information

UID:
2006-032-060
Claimant(s):
JOSHUA J. MINIX
Claimant short name:
MINIX
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110439
Motion number(s):
M-71188
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Joshua J. Minix, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
July 10, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In this action, claimant moves the Court for an order to strike defendant's sixth affirmative defense, which alleges that the claim is untimely. Defendant opposes this relief and argues that claimant failed to establish that the affirmative defense should be stricken. In reply to defendant's opposition, claimant moves for summary judgment.


CPLR 3024 (b) states that "[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." Further, affirmative defenses are not dispositive of a claim and are merely assertions of a party, absent prejudice, that will not be stricken (see CPLR 3024; 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 3018.14). The affirmative defense at issue here is a proper defense and not prejudicial or scandalous in any respect whatsoever. As such, claimant's motion for an order striking defendant's affirmative defense is denied.

With respect to the request set forth in claimant's reply papers for summary judgment, the Court likewise denies this relief. Claimant's application is defective inasmuch as he may not move for relief and raise new arguments in his reply submissions (see e.g. Wager v Hainline, 29 AD3d 569, [2d Dept May 2, 2006]). Claimant may, of course, submit a motion for summary judgment upon proper notice to defendant and in compliance with CPLR 2214. Accordingly, claimant's motion M-71188 is denied.



July 10, 2006
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:


1. Notice of Motion filed January 17, 2006;

2. Affidavit of Joshua J. Minix sworn to January 12, 2006; Exhibits A-B annexed;

3. Affidavit of Michael C. Rizzo filed February 15, 2006; Exhibits A-C annexed.

4. Claimant's Answer to Defendant's Affidavit in Opposition filed March 30, 2006; Exhibits A-F provided June 15, 2006.