Filed Papers: Claim, Verified Answer
In his claim, claimant alleges that while working as a mobility assistant at
Marcy Correctional Facility, defendant failed to pay him proper wages for
working overtime during the
period of May 7, 2007 through February 10, 2008.
In its first and only affirmative defense, the defendant alleges that the claim
is untimely in
that neither the claim nor a notice of intention was served within ninety days
of accrual of the claim as required by the Court of Claims Act §§ 10
and 11 .
Court of Claims Act § 11 (c) provides that “[a]ny objection or
defense based upon failure to comply with (i) the time limitations contained in
section ten of this act... is waived unless raised, with particularity, either
by a motion to dismiss made before service of the responsive pleading is
required or in the responsive pleading, and if so waived the court shall not
dismiss the claim for such failure.” In order to be raised with
particularity, an affirmative defense must provide “adequate and clear
notice to any reasonable person that a defect is claimed to exist and that it
may at some point be used as the basis of a motion to dismiss" (Sinacore v
State of New York, 176 Misc 2d 1,6).
Based on this standard, the Court finds that defendant did raise its
affirmative defense with particularity, albeit the bare minimum, as required by
§ 11(c). Therefore, defendant has not waived its right to assert the
affirmative defense of untimeliness.
That being established, it is well settled that, “[a] party may move to
strike any scandalous or prejudicial matter unnecessarily inserted in a
pleading,” (CPLR Rule 3024[b]). Affirmative defenses, however, are not
dispositive of a claim and are merely assertions of a party, absent prejudice,
that will not be stricken. (CPLR 3024; 5 Weinstein-Korn-Miller, NY Civ Prac
¶ 3018.14). In this particular matter, the affirmative defense raised by
the defendant is not prejudicial or scandalous in any respect, and was properly
included by the defendant in its Verified Answer.
Additionally, in his motion, claimant also alleges that defendant’s
answer is jurisdictionally defective, because defendant did not provide any
particulars regarding communications between a Department of Law investigator
and defendant’s attorney, referred to in the Verification to the Verified
Answer. However, there is no provision in the Court of Claims Act or CPLR which
requires the defendant to disclose either the identity of an investigator, or
the facts obtained from the investigator, in an answer.
Accordingly, it is
ORDERED, that Motion No. M-74969 is hereby DENIED.