New York State Court of Claims

New York State Court of Claims

SHANNON v. THE STATE OF NEW YORK, #2007-016-045, Claim No. 113629, Motion Nos. M-73724, CM-73851


Synopsis



Case Information

UID:
2007-016-045
Claimant(s):
JESSE SHANNON
Claimant short name:
SHANNON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113629
Motion number(s):
M-73724
Cross-motion number(s):
CM-73851
Judge:
Alan C. Marin
Claimant’s attorney:
Jesse Shannon, Pro Se
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Roberto Barbosa, Esq., AAG
Third-party defendant’s attorney:

Signature date:
October 16, 2007
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant Jesse Shannon moves to strike the State’s answer and the State cross-moves to dismiss the claim, in which it is alleged that on October 22, 2006, a water pipe broke, flooding claimant’s cell at Sullivan Correctional Facility and destroying certain of his legal papers. As to those portions of the State’s answer responding to the numbered paragraphs of the claim, Mr. Shannon apparently seeks to have them stricken solely on the ground that he disagrees with the responses. Such is not a valid reason for striking an answer. As to the State’s affirmative defenses, they are not dispositive of a claim, and like the allegations in the claim itself, are merely assertions made by a party. Striking affirmative defenses is generally not warranted in the absence of a showing of prejudice by the claimant. See, e.g., 5 Weinstein-Korn-Miller, NY Civ Prac ¶3018.14 at 30-432.

In this case, however, the State’s third and fourth affirmative defense have jurisdictional implications and are thus appropriate to address. In its third affirmative defense, the State asserts that the Court lacks jurisdiction because claimant failed to state a total sum claimed as required by §11 of the Court of Claims Act. In fact, Shannon specifically seeks $1,218 in his claim. As to the fourth affirmative defense, the State asserts a lack of jurisdiction on the ground that the claim was improperly served by regular mail. However, on this motion, the State does not dispute claimant’s assertion that in fact, his claim was served by certified mail, return receipt requested.

Defendant cross-moves to dismiss on the ground that claimant has released the State from liability in this case. The relevant facts are as follows. On October 24, 2006 claimant filed a facility claim seeking $873 for the damage to his papers caused by the flooding. On February 12, 2007, the claim was “approved” and claimant was offered reimbursement in the amount of $175. On February 15, 2007, claimant executed a “Claim” and “Release” in connection with the incident and on February 27, 2007, the amount of $175 was issued to him.

Claimant does not dispute the foregoing, but he characterizes the $175 as “partial settlement” of his claim, which he accepted “with intentions of pursuing this matter in the Court of Claims to recover the full cost . . .” In that regard, claimant states that two days after he signed the release, he “filed an appeal” to the Superintendent in which he stated that “I hereby appeal the partial settlement of $175.00 offered by DSA Lilley. Said settlement is not a fraction of the cost my family paid for my trial transcripts . . .” See exhibit B to claimant’s affidavit in opposition to defendant’s cross-motion. Shannon maintains that the foregoing served to “nullify and void the release of claim . . .”

Without addressing the validity of the release, it should be noted that there are two problems with defendant’s motion to dismiss. First, it was untimely made, as CPLR 3211(e) requires such a motion to be made prior to the expiration of the defendant’s time to answer, a time long past. In addition, such rule provides that a defense based, inter alia, on a ground contained in paragraph 5 of CPLR 3211(a) – which includes the defense of release – “is waived unless raised either by such motion or in the responsive pleading.” Defendant failed to raise the defense of release in either its answer or in a timely CPLR 3211 motion. In that regard, however, it has been held that “[a]lthough CPLR 3211(e) does deem the defense of release waived if not asserted in the answer or in a motion to dismiss, it can be raised in an amended answer in the absence of prejudice . . . inasmuch as it is not a jurisdictional defense . . .” Ficorp, Ltd. v Gourian, 263 AD2d 392, 392-93, 693 NYS2d 37, 38 (1st Dept 1999) (citations omitted), lv dismissed in part and denied in part, 94 NY2d 889, 706 NYS2d 76 (2000).

In view of the foregoing, having reviewed the submissions[1], IT IS ORDERED that motion no. M-73724 be granted to the extent that defendant’s third and fourth affirmative defenses shall be deemed stricken and such motion shall otherwise be denied. IT IS FURTHER ORDERED that cross-motion no. CM- 73851 be denied.

October 16, 2007
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The following were reviewed: claimant’s notice of motion with supporting affidavit; defendant’s notice of cross-motion with attached affirmation and exhibits A through C; and claimant’s affidavit in opposition to defendant’s cross-motion with exhibits A through C.