New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2007-009-004, Claim No. 112744, Motion No. M-72496


Synopsis


Claimant’s motion for an order dismissing the affirmative defense of culpable conduct was denied.

Case Information

UID:
2007-009-004
Claimant(s):
SAMUEL V. BROWN
Claimant short name:
BROWN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112744
Motion number(s):
M-72496
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
SAMUEL V. BROWN, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Thomas M. Trace, Esq.
Senior AttorneyOf Counsel.
Third-party defendant’s attorney:

Signature date:
March 6, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant has brought a motion seeking an order dismissing the sole affirmative defense asserted by the defendant in its verified answer.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support 1,2


Affirmation, with Exhibits 3


Affidavit of Donnell Jefferson, submitted in support of claimant’s motion 4

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 dangerous condition.

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.


March 6, 2007
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims