New York State Court of Claims

New York State Court of Claims

MCDOWELL v. THE STATE OF NEW YORK, #2008-009-026, Claim No. 115037, Motion No. M-75001


Synopsis


Claimant’s motion to dismiss affirmative defenses was denied.

Case Information

UID:
2008-009-026
Claimant(s):
SHAWN McDOWELL
Claimant short name:
MCDOWELL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115037
Motion number(s):
M-75001
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
SHAWN McDOWELL, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Bonnie G. Levy, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
September 25, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking an order dismissing the five affirmative defenses asserted by the defendant in its verified answer.

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


Affirmation in Opposition 3

Responding “Affirmation” 4

Claimant alleges that on April 11, 2006, he was injured when he tripped over a floor covering in the front foyer area of the State Office Building in Syracuse, New York. He further alleges that the defendant failed to properly maintain the floor covering area, thereby creating a dangerous condition.

In her Affirmation in Opposition (see Item 3), defendant’s attorney has withdrawn the third affirmative defense, in which it had asserted that neither the Notice of Intention to File a Claim nor the Claim had been timely served and/or filed. Additionally, in paragraph 6 of his supporting affidavit (see Item 2), claimant acknowledges that defendant’s fourth and fifth affirmative defenses are “factors to be considered by a jury or judge”, presumably at trial. Claimant has therefore conceded the fact that it would be inappropriate to dismiss these affirmative defenses at this point in the proceedings. This Court, therefore, will examine herein only the first two affirmative defenses set forth in defendant’s answer.

In its first affirmative defense, defendant alleges that the claimant may have contributed, in whole or part, to his injuries and/or damages by his own culpable conduct.

A motion to dismiss a defense must be made on the grounds that a defense is not stated or that it has no merit (CPLR 3211[b]). It is error for a Court to strike a defense in situations where material issues of fact remain unresolved (Matter of Harrison v State of New York, 262 AD2d 833; Connelly v Warner, 248 AD2d 941). When a claimant moves to dismiss a defense, the claimant bears the burden of coming forward with sufficient proof to demonstrate that the defense cannot be maintained, while the defendant is entitled to the benefit of every reasonable construction of the pleading. If there is any doubt as to the availability of a defense, it should not be dismissed (Pellegrino v Millard Fillmore Hosp., 140 AD2d 954).

Although claimant takes issue with this defense asserted by defendant, he has failed to establish, at this stage of the proceedings, that the defense has no merit. The essential nature of this claim (i.e., a trip and fall allegedly occurring as the result of an improperly maintained foyer area) necessarily raises the question of whether claimant’s own actions may have contributed in any degree to the occurrence.

Claimant is advised, however, that this defense is merely an assertion alleged by defendant, for which the defendant retains its burden of proof. Defendant, however, must be provided with the opportunity to develop the defense that claimant may have contributed in some part to his injuries.

In its second affirmative defense, defendant contends that the claim fails to state a cause of action, and/or seeks relief beyond the jurisdiction of this Court. The Court notes that with regard to this affirmative defense, a motion to dismiss is unnecessary as it is considered harmless surplusage (Pump v Anchor Motor Freight, Inc., 138 AD2d 849).

In accordance with the foregoing, it is

ORDERED, that with the consent of the defendant, the Third Affirmative Defense asserted by defendant in its Verified Answer is hereby dismissed; and it is further

ORDERED, that in all other aspects, Motion No. M-75001 is hereby DENIED.


September 25, 2008
Syracuse, New York

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