New York State Court of Claims

New York State Court of Claims

FELICIANO v. STATE OF NEW YORK, #2007-045-015, Claim No. 113511, Motion No. M-73556


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):
Cross-motion number(s):

Claimant’s attorney:
Michael Feliciano, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 22, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


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 [1996]; Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). 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 [1985]). 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 [1980]).

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[1975]).

Therefore, for the foregoing reasons, claimant’s motion is granted to the extent stated herein and in all other respects denied.

August 22, 2007
Hauppauge, New York

Judge of the Court of Claims