New York State Court of Claims

New York State Court of Claims

DESMARAT v. THE STATE OF NEW YORK, #2009-030-506, Claim No. 115579, Motion No. M-75915


Synopsis


Motion by pro se inmate claimant to strike affirmative defense denied. Answer raises defense that claim for loss of personal property not timely served and filed within 120 days of exhaustion of administrative remedies.

Case Information

UID:
2009-030-506
Claimant(s):
JEAN MARC DESMARAT
Claimant short name:
DESMARAT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115579
Motion number(s):
M-75915
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
JEAN MARC DESMARAT, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
February 3, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

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


defendant’s first affirmative defense:

1,2 Notice of Motion to Strike the Defense from the Answer, Affidavit in Support of Motion to Strike the Defense from the Answer of the Defendant and attached exhibits

3-5 Filed Papers: Claim, Answer; Affidavit in Support of Proof of Service by Jean Marc Desmarat, claimant filed November 14, 2008 and attached exhibits

No Opposition Filed

Claimant alleges various deprivations occurring during his transport from one correctional facility to another on or about December 13, 2007, including a loss of his personal property. This claim was filed on July 24, 2008 and apparently served on the defendant on October 9, 2008, as acknowledged in its answer. In its answer, in addition to a general denial, defendant asserts one affirmative defense as follows:
“The claim for the loss of personal property is not timely under Court of Claims Act 10(9) in that it was not served and filed within 120 days of March 11, 2008, the date that claimant exhausted his available administrative remedies.”


In the present motion, Mr. Desmarat alleges that he was prevented from timely serving and filing his claim because of mishandling in the facility mailroom. He indicates that he gave his claim to the Law Library Supervisor, C.O. S. Giguere, for postal services via certified mail on April 30, 2008. [Affidavit in Support of Motion to Strike the Defense from the Answer of the Defendant, ¶3]. An affidavit of service notarized on April 30, 2008 indicates that claimant placed the claim with correction officers for mailing to the attorney general’s office and the court. [Ibid. Exhibit A]. Claimant has attached to his moving papers photocopies of a disbursement request form dated April 29, 2008, and signed by claimant on April 30, 2008 requesting mailing to the Court of Claims, that is noted as approved on May 6, 2008, and then mailed on July 22, 2008, and a green return receipt card from the Court of Claims dated July 24, 2008. [Ibid. Exhibit B]. He has attached photocopies of a disbursement request form dated and signed by claimant on July 30, 2008 requesting mailing to the Attorney General’s Office, that is noted as approved on August (illegible), 2008, and as mailed on August 5, 2008, and a green return receipt card from the attorney general’s office indicating receipt on August 7, 2008. [Ibid. Exhibit B].

In an additional document filed in the Office of the Chief Clerk of the Court of Claims on November 14, 2008, entitled Affidavit in Support of Proof of Service, claimant asserts that he had presented the claim for mailing on April 30, 2008, but was advised later at some unspecified time that his mail was “sitting in the mailroom department” because his signature was illegible. [See Affidavit in Support of Proof of Service, ¶2]. Claimant thereafter wrote to the superintendent on July 22, 2008, indicating that he had tried to send out legal mail on April 30, 2008 addressed to the United States District Court and to the Court of Claims, but only learned that the mail had not been sent on or about July 21, 2006 (sic). [Ibid. Exhibit A]. This complaint was thereafter responded to by M. Patnode, the Deputy Superintendent for Program Services, in memoranda dated July 30, 2008 and August 1, 2008. [Ibid. Exhibit C]. In the August 1, 2008 memorandum the deputy superintendent notes
“The mail was processed promptly and at the time the department questioned the following; why the disbursement date was approximately 3 months old - 4/29, why the Law library signature indicated 5/6/08 and why the date next to your signature is 4/30/08?

After questioning the above, the correspondence department elected to process the legal/certified mail and it was signed in the Business Office on 7/24/08. I cannot ascertain why the legal /certified mail in question did not reach the Correspondence Office until July 21, 2008.” [Ibid. Exhibit C].


Claimant included in the Affidavit in Support of Proof of Service document filed on November 14, 2008 photocopies of a disbursement request form he signed on September 30, 2008 seeking service on the Attorney General’s Office of a document, noted as approved on September 30, 2008 and mailed on October 3, 2008; and another photocopy of the disbursement request form signed on July 30, 2008 seeking service on the Attorney General. [Ibid. Exhibit D].

An affirmative defense is raised in an Answer to provide adequate notice to a 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). 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, 190 Misc 2d 676, 688 (Ct Cl 2001). “. . . ‘If there is doubt as to the availability of a defense, it should not be dismissed’ (Duboff v Board of Higher Educ. of City of New York, 34 AD2d 824 [2d Dept 1970]).” [Id.].

Claimant has not shown how the defense asserted in the answer lacks merit or is otherwise deficient. His submissions are insufficient, and rather reinforce the need for a plenary trial on the issues. Indeed, the earliest date on the disbursement request forms he has submitted that seek service on the attorney general is July 30, 2008, more than 120 days after his administrative remedy with regard to the personal property claim was exhausted. While the affidavit of service he also submitted says otherwise, indicating that he presented a claim for service by mail on the court and on the attorney general on April 30, 2008, these are issues of fact. Notably, elsewhere he indicates that he presented documents for mailing to the United States District Court and the Court of Claims on April 30, 2008. As noted in the answer, the claim was served on October 9, 2008, when it was received by the Attorney General’s Office.[1] The affirmative defense has the appearance of merit.

Based on the foregoing, claimant’s motion to strike the affirmative defense is in all respects denied. Civil Practice Law and Rules §3211 (b).

February 3, 2009
White Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1].
Court of Claims Act §11(a) provides that the claim must be served personally or by certified mail, return receipt requested, upon the attorney general within the times prescribed in Court of Claims Act §10; and that service is complete when it is received in the Attorney General’s office. Court of Claims Act §11(a)(i).