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withdrawn the third affirmative defense, in which it had asserted that neither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
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
ORDERED, that in all other aspects, Motion No. M-75001 is hereby DENIED.