Claimant's motion to dismiss jurisdictional defenses denied. While it appears that the defense may have merit, the court expressed puzzlement at defendant's decision to oppose claimant's motion but not cross-move to dismiss the claim for lack of jurisdiction.
|Claimant short name:||WORD|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||STEPHEN J. MIGNANO|
|Claimant's attorney:||DIANE WORD, pro se|
|Defendant's attorney:||ANDREW M. CUOMO, ATTORNEY GENERAL
By: Michael C. Rizzo, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 27, 2010|
|See also (multicaptioned case)|
Claimant moves for an order striking the eight affirmative defenses from defendant's answer. Defendant opposes the motion.
As defendant contends, affirmative defenses merely represent defendant's position in the case and, although CPLR 3211(b) authorizes a motion to dismiss a defense "on the ground that a defense is not stated or has no merit," it is claimant's burden on this motion to "conclusively show that the defenses [lack] merit" (Suarez v State of New York, 60 AD3d 1243). With the exception of the sixth affirmative defense - which alleges that the court lacks jurisdiction because claimant failed to file a copy of the claim with the court, allegations that are shown by the court's file to be untrue - claimant has not met her burden of proof. The first, second, third and fourth defenses raise issues interrelated with the underlying facts and will likely need to await trial before they are resolved. The fifth, seventh and eighth defenses, on the other hand, allege that the court lacks jurisdiction over the claim arising from alleged pleading deficiencies. Claimant has not provided sufficient information to indicate that these defenses are conclusively without merit so the defenses remain. While the court does not understand defendant's position herein - alleging that the court lacks jurisdiction but litigating a motion to strike the jurisdictional defenses by merely opposing the motion and not cross-moving to dismiss - there is nothing the court can do to achieve a resolution of the jurisdictional issues now, rather than waste the time of all involved litigating a claim over which, according to defendant, the court lacks jurisdiction.
The motion is granted to the extent that the sixth affirmative defense is stricken. The balance of the motion is denied, without prejudice to whatever further motion practice the parties may wish to engage in to address these jurisdictional issues.
September 27, 2010
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Notice of Motion and unsworn "Affirmation"
Affidavit in Opposition