New York State Court of Claims

New York State Court of Claims

BINKLEY v. STATE OF NEW YORK, #2008-030-562, Claim No. 115465, Motion No. M-75457


Pro se inmate claimant motion to strike defenses and for a declaratory judgment granted in part and denied in part. Claim alleges Sing Sing personnel in the package room and later the grievance and/or media review committees, wrongfully withheld from his possession Japanese language flash cards purchased for educational and religious purposes.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
October 7, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s “Omnibus” motion to strike

defenses and for a declaratory judgment:

  1. “Omnibus Motion to Strike Defense Legally Insufficient Opposition to Dismissal & F/Declaratory Judgement” by David Binkley, Claimant and attached affidavit of service
  1. Affirmation in Opposition by Elyse J. Angelico, Assistant Attorney General and attached exhibits
3-7 Filed papers: Claim, Answer, Claim Supplement (filed July 24, 2008), Answer to Claim Supplement, Claim Supplement (filed August 18, 2008)

David Binkley alleges in his claim that defendant’s agents at Sing Sing Correctional Facility [Sing Sing] - specifically the package room and later the grievance and/or media review committees - wrongfully withheld from his possession Japanese language flash cards purchased for educational and religious purposes. The package room advised claimant that the cards would not be provided to him on February 1, 2008, and claimant pursued grievance claims thereafter. Such denial, he asserts, interfered with his right to free exercise of his religion. He seeks “incidental relief in the form of order to issue religious/educational ‘books,’ defined by International Standard Book Numbers as such for all intents and purposes under Federal and State law, restoring claimant’s liberty, property and due process rights . . . [and] compensatory and/or punitive damages: $100,000.00. [Claim No. 115465, ¶¶3 and 7]. He states that on April 30, 2008 the Central Office Review Committee [CORC] issued its decision denying the grievance he filed with regard to the materials. [Claim No. 115465, ¶3]. In copies of letters claimant wrote in pursuit of his grievance, that are attached to the claim filed in the Court of Claims, claimant indicates that the materials were returned to his mother. [Letter to Central Office Media Review Committee from David Binkley dated March 10, 2008].

The present motion by claimant[1] seeks an order striking affirmative defenses and for declaratory judgment.

The claim and claim supplement were served on the Office of the Attorney General on June 30, 2008 and July 24, 2008 respectively. [See Affirmation in Opposition by Elyse J. Angelico, Assistant Attorney General ¶¶ 3 and 4]. Answers to both documents were served on August 5, 2008, asserting - in addition to general denials - eight affirmative defenses.

As an initial matter, the state has withdrawn its seventh affirmative defense because it appears that the claimant did file a petition under Article 78 of the Civil Practice Law and Rules. Additionally, the defendant correctly points out that the Court of Claims may grant a declaratory judgment only under very limited circumstances, not present here. See Court of Claims Act §9(9-a).

A defense is raised in an answer to provide adequate notice to the claimant of issues of law or fact that the defendant may raise at trial or in later motion practice. Cipriano v City of New York, 96 AD2d 817 (2d Dept 1983). Indeed, Civil Practice Law and Rules §3018(b), concerning responsive pleadings, provides in pertinent part that a “. . . party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading such as . . . collateral estoppel, culpable conduct . . . or statute of limitation. The application of this subdivision shall not be confined to the instances enumerated.”

A motion to dismiss such defenses may be made on the ground that “. . . a defense is not stated or has no merit.” Civil Practice Law and Rules §3211(b). When evaluating such a motion, all of defendant’s allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the proof submitted. Capital Telephone Co. v Motorola Communications and Electronics, Inc., 208 AD2d 1150 (3d Dept 1994); Grunder v Recckio, 138 AD2d 923 (4th Dept 1988); 182 Fifth Avenue, LLC v Design Development Concepts, Inc., 300 AD2d 198 (1st Dept 2002); Arquette v State of New York, 190 Misc 2d 676, 688 (Ct Cl 2001). It is the moving claimant who has the burden of coming forward initially and demonstrating that the defense cannot be maintained. Arquette v State of New York, supra at 688.

“. . . ‘If there is doubt as to the availability of a defense, it should not be dismissed’ (Duboff v Board of Higher Educ., 34 AD2d 824.” [Id.]

With regard to the defenses remaining after defendant’s withdrawal of its seventh affirmative defense, they have the appearance of merit sufficient to survive this motion to dismiss same, given that they adequately alert claimant to issues of law or fact that might arise at trial based on the causes of action asserted, and are asserted prior to the conclusion of any discovery.

Defendant contends that there are issues of fact surrounding whether its agents followed proper procedures in the grievance process, and also contends that DOCS acted properly within the discretionary guidelines of Correction Law §§112, 136 and 137 in regulating access to material, thus, there may be some aspect of governmental immunity and reasonably exercised discretion that could apply as asserted in the first and second affirmative defenses. Claimant does not address the third affirmative defense concerning collateral source recovery pursuant to Civil Practice Law and Rules §4545(c) thus the defense is preserved.

The fourth affirmative defense, asserting that the defendant is not liable for employees’ acts outside the scope of their employment is not a proper defense. The asserted defense merely states conversely the claimant’s burden of showing that any negligent acts or omissions by State employees are chargeable to the State as employer because such acts or omissions were performed within the scope of employment. The fourth affirmative defense is stricken as unnecessary.

Claimant’s role in contributing to his own situation, and in purportedly failing to mitigate damages by following proper procedures, or obtaining alternative supplies, is an issue of fact, appropriately raised in the fifth affirmative defense.

The sixth affirmative defense asserting the court’s lack of jurisdiction over federal constitutional claims is appropriately raised in that the Court of Claims does not have subject matter jurisdiction to entertain such causes of action, and may entertain asserted violations of the state constitution under only very limited circumstances. See Brown v State of New York, 89 NY2d 172 (1996).

Finally, the eighth affirmative defense asserts the claimant’s alleged failure to state with any particularity the basis for the monetary damages sought. Court of Claims Act §11(b) requires that a claim “. . . state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed . . . ” Claimant is not required to include any documents with his pleading, nor is he required to furnish a detailed estimate of monetary damages to satisfy the statute or the case law decided thereunder. The eighth defense is stricken.

Based on the foregoing, claimant’s motion [M-75457] to strike all the affirmative defenses is granted to the extent that the fourth and eighth affirmative defenses are stricken, and the seventh affirmative defense is withdrawn. The balance of the motion is denied.

October 7, 2008
White Plains, New York

Judge of the Court of Claims

[1]. This is one of four (4) motions calendared by the Clerk since issue was joined on August 7, 2008. Three were marked submitted on September 17, 2008 [M-75442; M-75510; M-75457]. A fourth has been calendared for October 15, 2008 [M-75533].