The following papers were reviewed by the Court on this motion:
Claimant’s Notice of Motion for Summary Judgment, Claimant’s
Affidavit in Support with annexed Exhibits A-J and Defendant’s Affirmation
in Opposition with annexed Exhibits A and B.
Claimant, Stephen Gagne, a pro se inmate, moves this Court for an order
striking defendant’s verified answer, striking defendant’s
affirmative defenses, granting summary judgment and awarding the relief
requested in the claim.
Claimant alleges, inter alia, that defendant, through its agents at the
Southport Correctional Facility, negligently maintained the premises which
resulted in the destruction of his personal property, to wit, his legal papers
and medical records. Specifically, claimant states that on December 26, 2003 at
approximately 11:00 p.m. he awoke to water “pouring” down the walls
of his cell which accumulated into two inches of water. He claims that the
correction officers did not turn off the water or call a porter until 6:30 in
the morning. Claimant argues that defendant failed to repair holes in the floor
and ceiling of his cell as well as the entire cell block. Claimant further
contends that because the facility also houses mentally ill inmates, defendant
should have installed floor drains since these inmates constantly flood their
cells and cell blocks.
Initially, the Court notes that claimant has failed to set forth any grounds
which would warrant striking defendant’s verified answer. Thus, that
portion of claimant’s motion must be denied.
Claimant is also seeking an order striking defendant’s affirmative
defenses contained within the verified answer. A motion to dismiss a defense
must be made on the ground that either the defense is not stated or that it is
without merit (CPLR R 3211[b]). The moving party bears the burden of coming
forward with sufficient proof to demonstrate that the defense cannot be
maintained (Arquette v State of New York, 190 Misc 2d 676 [Ct Cl 2001]).
It is error for a court to strike a defense if material issues of fact remain
unresolved (Matter of Harrison v State of New York, 262 AD2d 833 [3d Dept
1999]) and in fact “[i]f there is doubt as to the availability of a
defense, it should not be dismissed” (Duboff v Board of Higher Educ. of
City of N.Y., 34 AD2d 824 [2d Dept 1970]).
Defendant’s first affirmative defense states that the claim fails to
state a cause of action. The pleaded defense of failure to state a cause of
action is harmless surplusage and a motion to strike it should be denied as
unnecessary (Pump v Anchor Motor Freight, Inc., 138 AD2d 849, 851 [3d
Dept 1988]). Accordingly, claimant’s motion to strike defendant’s
first affirmative defense is denied.
Defendant asserts governmental immunity in its second and third affirmative
defenses while the fourth affirmative defense concerns third party negligence.
Claimant fails in his attempt to establish that these defenses have no merit.
In support of his motion, claimant offers his own self-serving affidavit, which
expounds upon the contested allegations. The affidavit consists solely of
claimant’s unsupported and conclusory allegations. It is devoid of any
proof that the affirmative defenses of governmental immunity or third party
negligence are without merit as a matter of law. Accordingly, claimant’s
motion to strike the second, third and fourth affirmative defenses is also
Lastly, claimant is requesting an order granting him summary judgment in this
matter. As the party seeking summary judgment, claimant must make a prima
facie showing of entitlement to judgment as a matter of law, by offering
sufficient evidence to eliminate any material issues of fact from the case
(Cox v Kingsboro Medical Group, 88 NY2d 904 ; Winegrad v New
York Univ. Med. Center, 64 NY2d 851 ; Zuckerman v City of New
York, 49 NY2d 557 ). Failure to make a prima facie showing
requires denial of summary judgment, regardless of the sufficiency of the
opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853
). Once the proponent of a summary judgment motion establishes a prima
facie showing then the burden shifts to the opposing party to produce
evidentiary proof in admissible form sufficient to demonstrate the existence of
material issues of fact which require a trial of the action (Zuckerman v City
of New York, 49 NY2d 557, 562 ).
Here, triable issues of fact exist with respect to whether or not defendant
created and allowed a dangerous condition to exist as well as whether the
defendant breached its duty to maintain the premises in a reasonably safe
condition. Claimant’s submissions provide nothing more than allegation
and speculation as to the condition of his cell, the reason for the flood,
purported notice with respect to the condition of the cell block and the
behavior of mentally ill inmates. The exhibits demonstrate that there are
issues of fact with respect to the circumstances of the flooding incident, the
condition of the cell and what, if anything, defendant had notice of.
Claimant’s argument that there are no material facts in dispute because
the annexed exhibits relating to liability were provided to claimant by
defendant’s counsel is completely without merit. Accordingly,
claimant’s motion for summary judgment is also denied.
Therefore, for the foregoing reasons, claimant’s motion is denied in its