New York State Court of Claims

New York State Court of Claims

COLWELL v. THE STATE OF NEW YORK, #2007-009-007, Claim No. 112757, Motion Nos. M-72459, M-72460


Claimant’s motion to strike the affirmative defense of the defendant and a separate motion seeking permission to amend his claim were both denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-72459, M-72460
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
March 20, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


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 motions:
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" (sic)

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 Claim”.[1]

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 moot.[2]

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.)[3], and 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 DENIED.

March 20, 2007
Syracuse, New York

Judge of the Court of Claims

[1]. The Court does note, however, that in his Supplement to Claim, claimant seeks monetary damages of $290.00 for the alleged loss of items of personal property set forth therein, and in his proposed amended claim seeks damages of $300.00 for the loss of these items. The Court finds this discrepancy trivial in nature, and of no consequence in its decision herein.
[2].The Court notes that in his correspondence of November 20, 2006, the Chief Clerk notes that the filing of claimant’s “Supplemental Claim” is “subject to whatever legal objections may apply thereto”. Since the service and filing of this “Supplemental Claim” has not been challenged herein, no determination has been made by the Court as to the merits or contents of the “Supplemental Claim”.
[3]. Unpublished decisions and selected orders of the Court of Claims are available via the Internet at