Notice of Motion, Affidavit in Support 1,2
Affirmation, with Exhibits 3
Affidavit of Donnell Jefferson, submitted in support of claimant’s
In his claim, claimant alleges that on April 26, 2006 he was injured when he
tripped over a manhole at Marcy Correctional Facility, where he was then
incarcerated. He further alleges that defendant failed to properly maintain the
pavement and walkway where this manhole was located, thereby creating a
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 this motion, 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 trip and fall allegedly occurring as the result of
an improperly maintained walkway) 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.
Therefore, it is
ORDERED, that Motion No. M-72496 is hereby DENIED.