Claimant's two motions, one seeking a default judgment and the other seeking an order striking defendant's affirmative defenses, were both denied.
|Claimant(s):||ROBERT A. HORTON|
|Claimant short name:||HORTON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-78439, M-78577|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||ROBERT A. HORTON, Pro Se|
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Ed J. Thompson, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 13, 2010|
|See also (multicaptioned case)|
Claimant has brought two motions in connection with this bailment claim. In one motion (M-78439) claimant seeks an order striking the two affirmative defenses asserted by the defendant in its Verified Answer. In his other motion (M-78577) claimant seeks a default judgment based upon the defendant's failure to respond to his previously served Interrogatories. For purposes of judicial economy, both of these motions will be considered together herein.
The following papers were considered by the Court in connection with these motions:
Notice of Motion; Affidavit in Support (M-78439) 1,2
Affirmation in Opposition (M-78439) 3
Notice of Motion, Affidavit in Support (M-78577) 4,5
Affirmation in Opposition, with Exhibit (M-78577) 6
Filed Papers: Claim, Verified Answer.
The Court will first address claimant's motion seeking a default judgment (M-78577). As previously stated, claimant seeks a default judgment based upon defendant's failure to respond to his previously served Interrogatories.
As set forth in his Affirmation in Opposition to this motion (Item 6), the Assistant Attorney General defending the State in this matter has attached a copy of defendant's "Response to Interrogatories", which has now been served upon the claimant.
Claimant has not established, nor has he even asserted, any willful or contumacious conduct on the part of the defendant in failing to respond to his Interrogatories, nor has he claimed any prejudice related to the failure of the defendant to timely respond.
Accordingly, since defendant has now responded to claimant's Interrogatories, this motion is hereby denied.
With respect to claimant's other motion (M-78439), claimant seeks an order striking the two affirmative defenses asserted by the defendant in its Verified Answer. In its first affirmative defense, defendant alleges that culpable conduct of the claimant may have caused or contributed to the damages alleged in his claim. In its second affirmative defense, defendant alleges that any negligence or fault may have been due to a third person or persons (non-party).
A motion to dismiss a defense must be made on the grounds that a defense is not stated or that it has no merit (CPLR 3211[b]). It is error for a Court to strike a defense in situations where material issues of fact remain unresolved (Matter of Harrison v State of New York, 262 AD2d 833; Connelly v Warner, 248 AD2d 941). When a claimant moves to dismiss a defense, the claimant bears the burden of coming forward with sufficient proof to demonstrate that the defense cannot be maintained, while the defendant is entitled to the benefit of every reasonable construction of the pleading. If there is any doubt as to the availability of a defense, it should not be dismissed (Pellegrino v Millard Fillmore Hosp., 140 AD2d 954).
Furthermore, affirmative defenses are not dispositive of a claim and are merely assertions of a party, absent prejudice, that will not be stricken (CPLR 3024; 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 3018.14).
In this particular matter, neither of the affirmative defenses asserted by the defendant are dispositive of the claim, and claimant has failed to demonstrate that either defense cannot be maintained. Accordingly, the Court finds that both affirmative defenses were properly raised by the defendant in its Verified Answer. Claimant is advised, however, that these defenses are merely assertions alleged by the defendant, for which the defendant retains its burden of proof.
Therefore, in accordance with the foregoing, it is
ORDERED, that Motion No. M-78439 and Motion No. M-78577 are hereby both DENIED.
December 13, 2010
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims