New York State Court of Claims

New York State Court of Claims

WILLIAMS v. THE STATE OF NEW YORK, #2008-038-595, Claim No. 114391


114392, Motion No. M-74355


Synopsis


Claimant’s action to dismiss affirmative defenses denied (CPLR 3211 [b]). Claimant did not meet his burden of demonstrating that defenses lacked merit.

Case Information

UID:
2008-038-595
Claimant(s):
DARREN WILLIAMS
Claimant short name:
WILLIAMS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114391114392
Motion number(s):
M-74355
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
DARREN WILLIAMS, Pro se
Defendant’s attorney:
No appearance
Third-party defendant’s attorney:

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

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate incarcerated in a State correctional facility, seeks money damages for claimed injuries sustained when he was allegedly assaulted by correction officers on November 10, 2006. Claimant filed claim number 114391, in which he appears to assert a cause of action sounding in intentional tort. Simultaneously, he also filed claim number 114392, which contains allegations regarding the same incident and which asserts a cause of action sounding in negligent training of employees. Defendant filed two separate verified answers to the claims, each of which asserts the following affirmative defenses: (1) the comparative negligence of claimant or a third party, and (2) a defense based upon privilege, immunity or other bar to liability. In a single motion addressed to the answers to both claims, claimant requests dismissal of the affirmative defenses. Defendant has not opposed the motion.[1] CPLR 3211(b) provides that “[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit.” Claimant must come forward with proof sufficiently demonstrating that the defense is without merit (see Vita v New York Waste Servs., LLC, 34 AD3d 559 [2d Dept 2006]; Gagne v State of New York, UID # 2007-045-013, Claim No. 109628-A, Motion No. M-73091, Lopez-Summa, J. [July 19, 2007]; Arquette v State of New York, 190 Misc 2d 676, 688 [Ct Cl 2001]), and “[i]f there is doubt as to the availability of a defense, it should not be dismissed” (Duboff v Board of Higher Educ. of City of N.Y., 34 AD2d 824, 824 [2d Dept 1970]; Gagne v State of New York, supra).

Here, claimant has not met his initial burden of demonstrating the lack of merit in the affirmative defenses. He submits only his conclusory and self-serving affidavit which essentially elaborates upon the allegations set forth in the claim. While claimant’s affidavit denies that he invited correction officers into his cell, it sets forth no other facts addressing contributory negligence of claimant or any other party, and it completely fails to address the defense grounded in governmental immunity (see Gagne, supra). Accordingly,

Claimant’s motion No. M-74355, seeking dismissal of affirmative defenses set forth in the verified answers to claims No. 114391 and 114392 is DENIED.

April 24, 2008
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered


(1) Claim No. 114391, filed October 23, 2007;

(2) Verified Answer to Claim No. 114391, filed November 30, 2007;

(3) Claim No. 114392, filed October 23, 2007;

(4) Verified Answer to Claim No. 114392, filed December 3, 2007;

(5) Notice of Motion, dated December 18, 2007;

(6) Affidavit of Darren Williams, sworn to December 18, 2007;

(7) Affidavit of Service, sworn to December 11, 2007.


[1]. The affidavit of service of this motion upon the Attorney General was sworn to December 11, 2007, although it states that the motion was not served until December 18, 2007. Inasmuch as the motion cannot succeed, even without opposition, this inconsistency will be overlooked.