The following papers were reviewed by the Court on this motion:
Claimant’s Notice of Motion, Claimant’s Affidavit in Support with
annexed Exhibits A and B, Defendant’s Affirmation in Opposition with
annexed Exhibit A, Claimant’s letter to the Court dated July 1, 2007
requesting assignment of counsel, the filed Claim and the filed
Answer. Claimant, Michael Feliciano, a pro se inmate, has brought this
motion seeking an order striking defendant’s affirmative defenses and for
entry of judgment in his favor. Claimant alleges, inter alia, that
defendant, through its agents at the Southport Correctional Facility,
negligently lost his personal property while he was incarcerated at the
facility. Claimant contends that his personal property was inventoried by
defendant outside of his presence on December 26, 2006, January 2, 2007 and on
January 9, 2007. Thereafter, claimant received an I-64 form from defendant
which listed all of claimant’s inventoried personal property at the
facility. Claimant states that he then noticed that certain items of his
personal property were missing from the I-64 forms. Subsequently, claimant
filed an inmate personal property claim with the Department of Correctional
Services for lost personal property totaling $77.64. On February 7, 2007, the
claim was approved in part for $30.00. Claimant appealed the partial approval
and on February 14, 2007 the partial approval was upheld. On March 28, 2007,
claimant filed the present claim with the Court. Claimant is 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 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 claimant’s
damages are due in whole or part to claimant’s own culpable conduct.
Defendant asserts collateral estoppel, res judicata and governmental immunity in
its second and fourth affirmative defenses. In support of his motion, claimant
offers only his own self-serving affidavit, which consists solely of
claimant’s unsupported and conclusory allegations. It is devoid of any
proof that the above affirmative defenses are without merit as a matter of law.
Accordingly, that portion of claimant’s motion which seeks to strike
defendant’s first, second and fourth affirmative defenses is denied.
Defendant’s third affirmative defense is for lack of jurisdiction based
upon claimant’s failure to demonstrate that he has exhausted his
administrative remedies. However, the record before the Court clearly
establishes that claimant has exhausted his administrative remedies in this
matter. Defendant’s argument that claimant has not proffered any
information stating whether or not he accepted a settlement offer is not
persuasive. It is implicit in the fact that claimant filed the instant claim on
March 28, 2007 that he rejected defendant’s February 15, 2007 settlement
offer. Accordingly, claimant’s motion to strike defendant’s third
affirmative defense is granted.
Lastly, claimant is requesting entry of judgment in his favor. 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,
Claimant’s submissions lack sufficient evidence in admissible form for
the Court to consider whether or not there are any issues of material fact.
Accordingly, claimant’s motion for entry of judgment is denied.
To the extent that claimant’s submission dated July 1, 2007 requesting
assignment of counsel can be viewed as a motion, it is also denied. The
appointment of an attorney is generally not available to civil litigants and
would be inappropriate in this action given the allegations contained in the
filed claim (see Matter of Smiley, 36 NY2d 433).
Therefore, for the foregoing reasons, claimant’s motion is granted to the
extent stated herein and in all other respects denied.