New York State Court of Claims

New York State Court of Claims

PENA v. STATE OF NEW YORK, #2008-045-002, Claim No. 112326, Motion No. M-71973


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:
Polito Pena, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Frederick H. McGown, III, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 11, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were reviewed by the Court on this Motion: Claimant’s Notice of Motion with annexed Exhibits 1-10, Defendant’s Affirmation in Opposition, the filed Claim and the Verified Answer.

Claimant, Polito Pena, a pro se litigant, moves this Court for an order striking defendant’s affirmative defenses, granting summary judgment and awarding the relief requested in the claim. Defendant, the State of New York, opposes claimant’s motion.

Claimant alleges, inter alia, that Department of Correctional Services personnel improperly placed him in medical confinement from February 7, 2006 through March 14, 2006 in retaliation for filing a grievance.

On January 26, 2006, claimant filed a grievance alleging that he had lost commissary, phone and mail privileges. While that grievance was pending, claimant was placed in medical confinement due to exposure to an active case of tuberculosis, although he had tested negative for the disease. Claimant had received a copy of his test results dated February 13, 2006 which stated “no acid-fast bacilli seen” and that the culture was pending (see exhibits A-5, A-6, A-7 attached to the filed claim). On March 8, 2006, in response to an inquiry he made, claimant received a memorandum from the Deputy Superintendent for Administration which advised him that he was placed in respiratory isolation due to exposure to an active case of tuberculosis. Claimant was also informed that policy mandated that he remain in isolation for six weeks or until the culture results were received. Claimant’s submissions do not clarify the status and/or outcome of his grievance.

A motion to dismiss affirmative defenses must be made on the grounds that the defenses are not stated or that they are without merit (CPLR 3211[b]). The moving party bears the burden of coming forward with sufficient proof to demonstrate that the defense cannot be maintained (Arquette v State of New York, 190 Misc 2d 676 [Ct Cl 2001]). It is error for a court to strike a defense if material issues of fact remain unresolved (Matter of Harrison v State of New York, 262 AD2d 833 [3d Dept 1999] and in fact “[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 [2d Dept 1970]).

Defendant’s first affirmative defense states that claimant’s culpable conduct caused or contributed to cause the damages alleged in the claim and its second affirmative defense asserts third party negligence. Claimant fails in his attempt to establish that these defenses have no merit. In support of his motion, claimant offers a self-serving statement which consists solely of claimant’s unsupported and conclusory allegations that his confinement was retaliatory. It is devoid of any proof that the affirmative defenses of culpable conduct and third party negligence are without merit as a matter of law. Accordingly, claimant’s motion to strike the first and second affirmative defenses is denied.
Defendant asserts lack of subject matter and personal jurisdiction in its third and fourth affirmative defenses stating that claimant failed to serve the Notice of Intention by certified mail return receipt requested. Claimant fails in his attempt to establish that these defenses have no merit. Claimant references exhibit B-6 in the filed claim in support of his position that the defenses should be stricken. Exhibit B-6 is a Disbursement Fund Request which references Medical Claim/Notice dated February 23, 2006 and approved on February 24, 2006 for $0.42 in postage. Assuming for the purpose of this motion that the referenced exhibit actually refers to the Notice of Intention, claimant established that it was served by regular mail, not certified mail return receipt requested.

Defendant asserts as its fifth and sixth affirmative defenses that claimant’s failure to serve the claim within ninety days of its accrual deprives the Court of subject matter and personal jurisdiction. Claimant has also failed to establish that these affirmative defenses are not meritorious. Accordingly, claimant’s motion to strike the fifth and sixth affirmative defenses is denied.

Lastly, claimant is requesting an order granting him summary judgment in this matter. As the party seeking summary judgment, claimant must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact from the case (Cox v Kingsboro Medical Group, 88 NY2d 904 [1996]; Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Once the proponent of a summary judgment motion establishes a prima facie showing then the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Here, questions of fact exist concerning the events which gave rise to the claimant’s assignment and stay in medical confinement. Claimant’s submissions, which are unsworn, provide nothing more that his speculation as to the reason for his confinement. Consequently, claimant’s motion for summary judgment is denied.

Therefore, for the foregoing reasons, claimant’s motion is denied in its entirety.

January 11, 2008
Hauppauge, New York

Judge of the Court of Claims