|Claimant short name:||BARCA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Hamilcar Barca, Pro Se|
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Roberto Barbosa, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||August 31, 2010|
|See also (multicaptioned case)|
Claimant moves this Court for an order pursuant to CPLR 3211(b), striking defendant's affirmative defenses. No response has been submitted by defendant. For the reasons set forth below, the Court denies claimant's motion.
The underlying claim, which was filed on December 4, 2009, alleges that on April 17, 2009, claimant was caused to slip and fall as a result of defendant's negligence. Defendant filed a Verified Answer on January 7, 2010. In said Verified Answer, defendant set forth three affirmative defenses. The first affirmative defense alleges that the Court lacks personal jurisdiction over defendant and subject matter jurisdiction over the claim because the claim was served by regular mail and not by certified mail, return receipt requested, or personal service (see paragraph 6 of defendant's Verified Answer). The second affirmative defense alleges that whatever injuries and/or damages claimant sustained were caused in whole or in part or were contributed to by the culpable conduct of claimant, and requests that any recovery by claimant be diminished proportionately (see paragraphs 7 and 8 of defendant's Verified Answer). The third affirmative defense alleges that if the facts demonstrate that any issues pertinent to this action have been settled, paid or released by claimant, claimant is precluded from relitigating those issues and actions in this claim (see paragraph 9 of defendant's Verified Answer).
Claimant now moves to strike defendant's affirmative defenses. In support of his motion, he alleges that the first affirmative defense be stricken because he served defendant with a Notice of Intention to File a Claim via certified mail, return receipt requested, and annexes a document which he alleges is proof of the same. As to the second and third affirmative defenses, claimant states, without providing any explanation or support, that the injuries and damages sustained by claimant were caused in whole or in part by defendant and should not be diminished, and further, that if any issues pertinent to this action or any other action have been settled, paid or released by claimant that claimant should not be precluded from relitigating said issues and actions in this claim.
A motion to dismiss a defense must be made on the ground that either the defense is not stated or has no merit (CPLR R 3211[b]). The moving party bears the burden of coming forward with sufficient proof to demonstrate that the defense cannot be maintained (Arquette v State of New York, 190 Misc 2d 676 [Ct Cl 2001]; Vita v New York Waste Services, LLC, 34 AD3d 559 [2d Dept 2006]). It is error for a Court to strike a defense if material issues of fact remain unresolved (Matter of Harrison v State of New York, 262 AD2d 833 [3d Dept 1999]) or if there is any doubt as to the availability of the defense (Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721 [2d Dept 2008]; Thy Tran v Avis Rent A Car, 289 AD2d 731, 732 [3d Dept 2001]).
In the present case, claimant has not shown how the affirmative defenses asserted in defendant's Verified Answer lack merit or are otherwise deficient. He alleges only that he served a Notice of Intention to File a Claim by certified mail, return receipt requested. He does not address or provide support in any manner to confirm that he served the claim by personal service or certified mail, return receipt requested. Moreover, if the subject affirmative defenses are proved (i.e. if claimant's alleged damages are found to have been caused in whole or in part by the conduct of claimant or that issues pertinent to this action have been settled, paid or released by claimant), defendant's liability would be negated or at least limited.
In light of the foregoing, Claimant's motion to strike defendant's affirmative defenses is denied.
August 31, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion, dated May 3, 2010; Affidavit in Support, sworn to by Hamilcar Barca, on May 3, 2010;
2. No opposition.
Papers Filed: Claim, filed December 4, 2009; Verified Answer, filed January 7, 2010; Order of Hon. Richard E. Sise, Presiding Judge, filed January 13, 2010.