New York State Court of Claims

New York State Court of Claims

JOSEPH v. THE STATE OF NEW YORK, #2009-032-140, Claim No. 116552, Motion No. M-76573


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:
Ricardo Joseph, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Roberto Barbosa, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
September 2, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves this Court for an order pursuant to CPLR 3211(b), striking the “responses or defenses” asserted in Defendant’s answer. Based upon the fact that the CPLR does not authorize either a motion to dismiss mere denials contained in an answer or a motion to strike such denials (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3018:4; CPLR C3211:38), and in light of the specific paragraphs of Defendant’s answer that Claimant addresses, the Court will treat this motion as one seeking the striking of Defendant’s first and second affirmative defenses.

The underlying claim, which was filed on March 12, 2009, alleges that Claimant was the victim of assault and battery by correction officers on April 17, 2008. Defendant filed a Verified Answer on April 6, 2009. In the Verified Answer, Defendant set forth three affirmative defenses, the first two of which are the subject of this motion. The first affirmative defense alleges that whatever injuries and/or damages Claimant sustained were caused in whole or in part or were contributed to by the culpable conduct of Claimant, and requests that any recovery by Claimant be diminished proportionately (see paragraphs 5 and 6 of Defendant’s Verified Answer). The second affirmative defense alleges that if any negligence or fault or want of care, other than that of Claimant caused or contributed to the injuries and/or damages in the claim, it was the negligence or fault or want of care of a third person over whom Defendant is not and was not responsible (see paragraph 7 of Defendant’s Verified Answer).

A motion to dismiss a defense must be made on the ground that either the defense is not stated or has no 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]; Vita v New York Waste Services, LLC, 34 AD3d 559 [2d Dept 2006]). 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]) or if there is any doubt as to the availability of the defense (Fireman’s Fund Ins. Co. v Farrell, 57 AD3d 721 [2d Dept 2008]; Thy Tran v Avis Rent A Car, 289 AD2d 731, 732 [3d Dept 2001]).

In the present case, Claimant has not shown how the affirmative defenses asserted in Defendant’s Verified Answer lack merit or are otherwise deficient. To the contrary, his submissions confirm the need for a factual determination on the issues. If the subject affirmative defenses are proved (i.e. if Claimant’s alleged damages are found to have been caused in whole or in part by the conduct of Claimant or a third party over whom Defendant had no legal responsibility), Defendant’s liability would be negated or at least limited.

Accordingly, notwithstanding the fact that Defendant has defaulted on the motion, Claimant’s application to strike Defendant’s first and second affirmative defenses is denied as legally insufficient to sustain the relief requested.

September 2, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion to Strike the Defense from the Answer, and Affidavit in Support of Claimant, sworn to April 13, 2009;

2. No opposition.

Papers Filed: Claim, filed March 12, 2009; Verified Answer, filed April 6, 2009.