New York State Court of Claims

New York State Court of Claims

REID v. THE STATE OF NEW YORK, #2008-009-019, Claim No. 115052, Motion No. M-74969


Synopsis


Claimant’s motion to strike defendant’s affirmative defense of untimely service was denied.

Case Information

UID:
2008-009-019
Claimant(s):
DOUGLAS E. REID
Claimant short name:
REID
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115052
Motion number(s):
M-74969
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
DOUGLAS E. REID, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
September 23, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking an order striking the sole affirmative defense contained in the defendant’s Verified Answer.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support 1,2


Defendant’s Response to Motion, with Exhibits 3

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.

September 23, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims