New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2009-038-522, Claim No. 114691, Motion No. M-75755


Claimant’s motion to dismiss affirmative defenses (CPLR 3211[b]) denied because claimant failed to demonstrate lack of merit in defenses.

Case Information

1 1.The caption of this claim has been amended sua sponte to reflect the State of New York as the proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this claim has been amended sua sponte to reflect the State of New York as the proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael T. Krenrich, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 5, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate incarcerated in a State correctional facility, seeks money damages for claimed injuries sustained when he was allegedly assaulted by an inmate with whom he shared a cell at Upstate Correctional Facility on August 2, 2007. In its verified answer, defendant asserts the following defenses: (1) that claimant’s injuries were caused by the negligence of claimant or a third party, and (2) that it was improper for claimant to append exhibits to filed documents. Claimant moves pursuant to CPLR 3211 (b) for an order striking an unspecified affirmative defense. Defendant opposes the motion. 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.” In support of a such a motion, the movant must come forward with proof sufficiently demonstrating that the defense is without merit as a matter of law (see Vita v New York Waste Servs., LLC, 34 AD3d 559 [2d Dept 2006]; Suarez v State of New York, 14 Misc 3d 1230[A] [Ct Cl 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], 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]; see Gagne v State of New York, supra).

Claimant has not met his burden of demonstrating the lack of merit in the affirmative defenses. First, his affidavit in support of the motion does not articulate to which of the defenses his motion is addressed, and it offers no facts that are relevant to the merits of the defenses asserted in defendant’s answer. Second, his argument that defendant knew of the other inmate’s dangerous propensities and failed to adequately supervise the inmate (see Affidavit of Craig Brown, ¶ 5) goes to the merits of the claim, not the lack of merit in a defense. And finally, claimant’s contention that “the defendant fails to demonstrate a factual showing that such incident hasn’t occurred” (id. at ¶ 4) is unavailing for two reasons. First, the affirmative defenses do not assert that the incident did not occur, and second, this contention ignores claimant’s burden to demonstrate the lack of merit in the affirmative defenses by improperly attempting to place the burden of sustaining the affirmative defense(s) for purposes of this motion on defendant. In sum, because claimant’s motion fails to demonstrate the lack of merit in the affirmative defenses, the motion cannot be granted. Accordingly, it is
ORDERED, that motion No. M-75755 is DENIED.

March 5, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) “Verified Complaint” (Claim No. 114691), with exhibits, filed January 10, 2008;

(2) Verified Answer, filed January 17, 2008;

(3) Notice of Motion, dated September 22, 2008;

(4) Affidavit in Support of Graig [sic] Brown, sworn to September 23, 2008, with Exhibits A-B and unenumerated Exhibit;

(5) Affirmation in Opposition of Michael T. Krenrich, AAG, dated November 14, 2008.