New York State Court of Claims

New York State Court of Claims

BAGOT v. THE STATE OF NEW YORK, #2008-032-121, Claim No. 114735, Motion No. M-75515


Synopsis



Case Information

UID:
2008-032-121
Claimant(s):
CARDUCK A. BAGOT
Claimant short name:
BAGOT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114735
Motion number(s):
M-75515
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Carduck A. Bagot, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Glenn C. King, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
November 24, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Although captioned “Motion to Strike Defendant’s Answer”, claimant’s instant
application takes issue only with defendant’s “Fourth Affirmative Defense” which asserts the Court lacks jurisdiction over the claim due to the failure of timely service of either a claim or notice of intention.

In support of the application, claimant asserts his claim was timely filed and has attached copies of two certified mail return receipt “green cards” - one for the Claim and the other for the Notice of Intent. Each green card bears a received stamp of the Attorney General’s Office and is dated.

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 [3d Dept 1999]); Connelly v Warner, 248 AD2d 941 [4th Dept 1998]). 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 [4th Dept 1988]).

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. As defendant notes, it is unclear from the claim when the claim accrued. Claimant omitted an accrual date in the claim and, although he is alleging 21 days of wrongful confinement, he asserts the acts giving rise to the claim occurred between September 17, 2007 and October 5, 2007, a period of 19 days. Moreover, the Court cannot discern the received date on the green card marked Notice of Intent nor has claimant provided the Court with a copy of the Notice of Intent for review. Given the doubt raised by the foregoing, the Court is unable to conclude that the Fourth Affirmative Defense lacks merit.

Accordingly, claimant’s motion M-75515 is denied in its entirety.




November 24, 2008
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:


1. Claimant’s Notice of Motion, Supporting Affidavit and Exhibits;

2. Affirmation in Opposition of Assistant Attorney General Glenn C. King.

Filed Papers: Claim, Verified Answer