The following papers were reviewed by the Court on these motions:
Claimant’s Notice of Motion with annexed documents, Defendant’s
Cross-Motion for Leave to Respond or for Leave to Renew and Defendant’s
Affirmation with annexed Exhibits A-F.
Claimant, Polito Pena, a pro se inmate, has brought this motion seeking
an order striking defendant’s affirmative defenses and for entry of
judgment in his favor. Defendant, the State of New York, initially failed to
respond to this motion, however, it subsequently filed a cross-motion, CM-73618,
ostensibly seeking permission to belatedly respond to the motion.
Claimant alleged in his claim, inter alia, that Department of
Correctional Services personnel improperly placed him in medical confinement. In
response defendant filed a Verified
Answer in which it asserted six affirmative defenses. Claimant then served
various documents upon defendant which defendant claims were not in proper form
to commence a motion. However, the documents filed by claimant and received by
the Clerk of the Court of Claims on July 3, 2006 were treated by the
Clerk’s Office as a motion. Thereafter, defendant sent a letter to the
Clerk of the Court wherein it stated that it did not understand claimant’s
communication dated July 3, 2006 and received by the Office of the Attorney
General on July 7, 2006. Thus, defendant took no position concerning the
document. By letter, the Chief Clerk then informed all parties that the motion
numbered M-71973 was calendered before another Judge of the Court of Claims.
Subsequently, the motion was reassigned and given a return date of July 18,
Apparently, the present motion was actually received by the Office of the
Attorney General on June 28, 2006. Defendant cites this apparent confusion as
its reason for failing to respond to the motion. Due to claimant’s
inartfully crafted papers as well as the lack of prejudice to claimant the Court
will grant defendant’s application to respond to the instant motion.
Consequently, claimant’s motion, M-71973, is given a new return date of
November 21, 2007. Defendant is directed to serve its papers on claimant by
November 7, 2007 in order to provide claimant with ample opportunity to reply to
defendant’s submission by the return date.
Therefore, for the foregoing reasons, defendant’s cross-motion CM-73618
is granted to the extent stated herein. Additionally, claimant’s motion,
M-71973 is adjourned to November 21, 2007.