|Claimant short name:||SITAL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Frans Sital, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Roberto Barbosa, AAG
|Third-party defendant's attorney:|
|Signature date:||August 10, 2010|
|See also (multicaptioned case)|
Claimant Frans Sital moves to strike the State's affirmative defenses. In his claim, Mr. Sital alleges that because of defendant's negligence, items of his personal property went missing between August 8, 2008 and September 7, 2008 while he was incarcerated at Sullivan Correctional Facility.
In its first affirmative defense, the State alleges that any damages sustained by claimant were caused in whole or part by his own conduct. In the second affirmative defense, it is asserted that any damages sustained by claimant were caused by the negligence of a third person or persons. In the third affirmative defense, it asserted that if claimant has settled or released the State in connection with this claim, he will "be precluded from relitigating those issues . . ."
The State's affirmative defenses are not dispositive of a claim, and like the allegations in the claim itself, are merely assertions made by a party. To the extent that they are raised at trial, claimant will be afforded the opportunity to dispute them. Striking affirmative defenses is generally not warranted in the absence of a showing of prejudice by the claimant. See, e.g., 5 Weinstein-Korn-Miller, NY Civ Prac ¶3018.14 at 30-432. Here, claimant has failed to demonstrate any prejudice.
In view of the foregoing, having reviewed the submissions(1) , IT IS ORDERED that motion no. M-78399 be denied.
August 10, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. The following were reviewed: claimant's notice of motion with affidavit in support; defendant's affirmation in opposition; and claimant's reply affirmation.