Claimant has brought two motions pertaining to this bailment claim which, for
purposes of judicial economy, will be considered together herein. In Motion No.
M-72459, claimant seeks an order striking the sole affirmative defense asserted
by the defendant in its verified answer. In his second motion (M-72460),
claimant seeks an order granting him permission to amend his claim.
The following papers were considered by the Court in connection with these
Notice of Motion, Affidavit in Support (M-72459) 1,2
Notice of Motion, Affidavit in Support, Proposed “Amendmants [sic] to
Claim”, with Exhibits (M-72460) 3,4,5
Affirmation in Opposition, with Exhibits (M-72459, M-72460) 6
Claimant’s Affidavit (Reply), with Exhibit (M-72459/M-72460) 7
Filed Papers: Claim, “Supplement to Claim Pursuant to § 909"
With respect to claimant’s motion seeking permission to amend his claim,
the Court notes that claimant previously filed with the Clerk of the Court of
Claims a “Supplement to Claim Pursuant to § 909" (sic) on October 17,
2006, and also submitted an affidavit of service upon the Attorney General of
this supplement. By correspondence dated November 20, 2006, the Chief Clerk of
the Court of Claims acknowledged receipt of this “Supplement to
Claim” and noted that said supplemental claim “has been given the
original Claim No. 112757" (Bold Face in Original).
In his motion to amend, claimant seeks to add similar allegations as already
contained in this “Supplement to
Since the relief sought by claimant in Motion No. M-72460 has already been
accomplished by the service and filing of his “Supplement to Claim”,
claimant’s motion to amend is unnecessary and is therefore denied as
In Motion No. M-72459, claimant seeks an order dismissing the sole affirmative
defense asserted by the defendant in its verified answer, in which defendant has
asserted the affirmative defense alleging, in essence, that claimant failed to
exhaust his administrative remedies with respect to a portion of the claim.
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. Defendant has
merely alleged that the items alleged to have been lost, set forth in the filed
claim, are not identical (in either monetary value or specific items) to the
items set forth in claimant’s administrative claim. This assertion made
by defendant raises a potential jurisdictional defect as to a portion of the
claim (see Brown v State of New York
, UID No. 2005-009-010, Claim No.
110036, Motion No. M-69459, Midey, J.)
claimant has not demonstrated that this defense is entirely without merit.
Therefore, it cannot be dismissed at this time.
Claimant is advised, however, that even though this affirmative defense has not
been dismissed herein, it remains merely an assertion alleged by the defendant,
for which the defendant retains its burden of proof.
Therefore, based upon the foregoing, it is
ORDERED, that Motion No. M-72459 and Motion No. M-72460 are both hereby