For the reasons set forth below, Claimant’s motion pursuant to CPLR
3211(b) and (c) for an order striking Defendant's Answer to the Claim and for
summary judgment is denied in part and granted in part.
This pro se Claim, which was filed in the office of the Clerk of the
Court on April 8, 2009, asserts that Claimant was confined to keeplock at
Upstate Correctional Facility located in Malone, New York (Upstate) for 12 days
in excess of the penalty imposed following a disciplinary hearing. Claimant
asserts that the Claim accrued on November 20, 2008.
In response to the Claim, the State served and filed a Verified Answer wherein
the State denied knowledge or information sufficient to form a belief as to the
truth of all of the allegations in the Claim, and raised six affirmative
Claimant’s Notice of Motion states that the motion is one to “to
strike out defense from Verified Answer,” however, Claimant’s
Affidavit in Support makes clear that he is also seeking summary judgment in his
A motion to dismiss defenses may be made on the ground that a defense is not
stated or has no merit (CPLR 3211[b]). “[A]n affirmative defense should
not be dismissed if there is any doubt as to its availability” (Thy
Tran v Avis Rent A Car, 289 AD2d 731, 732 [3d Dept 2001]; see Nahrebeski
v Molnar, 286 AD2d 891 [4th Dept 2001]). “It is well settled that
‘[o]n a motion to dismiss a defense pursuant to CPLR 3211(b), all of
defendant’s allegations must be deemed to be true and defendant is
entitled to all reasonable inferences to be drawn from the submitted
proof’ ” (Capital Tel. Co. v Motorola Communications and
Elecs., 208 AD2d 1150, 1150 [3d Dept 1994], quoting Grunder v
Recckio, 138 AD2d 923 [4th Dept 1988]). Moreover, the movant “[bears]
the burden of demonstrating that those defenses [are] without merit as a matter
of law” (Vita v New York Waste Services, LLC, 34 AD3d 559, 559 [2d
Dept 2006]; see Suarez v State of New York, 14 Misc 3d 1230[A] [Ct Cl
The State’s first two affirmative defenses assert that Claimant’s
damages were caused by his own culpable conduct or the conduct of a third party
over whom the State had no legal responsibility. If proved, Claimant’s
culpable conduct would negate, or at least limit, Defendant’s liability,
as would the culpable conduct of a party over whom the State had no legal
responsibility. Accordingly, those defenses must stand pending a factual
determination of the issues.
The third affirmative defense asserts that Claimant has failed to assert a
cause of action against Defendant. The Court has reviewed the Claim and finds
that a cause of action has been stated. Therefore, the motion to dismiss the
third affirmative defense is granted and it is dismissed.
The fourth and sixth affirmative defenses are similar and assert that the
actions complained of are privileged or immune from the imposition of liability.
Again, if the State’s assertion is proved, the State cannot be held liable
for any damage to Claimant. Those defenses must stand pending a factual
determination of the issue of whether a discretionary action or an action based
upon a professional judgment was made.
The fifth affirmative defense asserts that the actions of Defendant were at all
times justified and based upon probable cause. Again, if the State’s
assertion is proved, the State cannot be held liable for any damage to Claimant.
That defense must also stand pending a factual determination of the issue.
Claimant also moves for summary judgment. Summary judgment is a drastic remedy
to be granted sparingly and only where no material issue of fact is demonstrated
in the papers related to the motion (see Crowley’s Milk Co. v
Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup
Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). CPLR 3212(b)
requires that a motion for summary judgment be supported by a copy of the
pleadings (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 ). In
support of his motion, Claimant did not submit a copy of his Claim or the
State’s Answer to the Claim. The failure to include pleadings in support
of a motion for summary judgment requires that the motion be denied, regardless
of the merits of the motion (Senor v State of New York, 23 AD3d 851 [3d
Dept 2005]; Bonded Concrete, Inc. v Town of Saugerties, 3 AD3d 729 [3d
Dept 2004], lv dismissed 2 NY3d 793 ; Deer Park Assocs. v
Robbins Store, 243 AD2d 443 [2d Dept 1997]; CPLR 3212[b]). In addition,
CPLR 3212(b) requires that the motion be supported by “available
proof.” Claimant submitted his own affidavit and several exhibits in
support of his motion, including the date he was to be released from keeplock,
but did not present any evidentiary proof as to when he was released from
keeplock. “The proponent of a summary judgment motion must make a
prima facie showing of entitlement to judgment as a matter of law,
tendering sufficient evidence to eliminate any material issues of fact from the
case”(Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853
; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Sillman
v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 ). “Failure
to make such prima facie showing requires a denial of the motion,
regardless of the sufficiency of the opposing papers” (Alvarez v
Prospect Hosp., 68 NY2d 320, supra at 324; see Winegrad v New York
Univ. Med. Center, 64 NY2d 851, supra at 853).
Therefore, based upon the foregoing, Claimant’s motion to strike the
State’s Answer is granted in part and denied in part and the motion for
summary judgment is denied.