New York State Court of Claims

New York State Court of Claims
MIDALGO v. THE STATE OF NEW YORK, # 2010-032-032, Claim No. 117817, 117818, Motion No. M-78282

Synopsis

Case information

UID: 2010-032-032
Claimant(s): GABRIEL G.H. MIDALGO, A/K/A GABRIAN GABBY HIDALGO
Claimant short name: MIDALGO
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 117817, 117818
Motion number(s): M-78282
Cross-motion number(s):
Judge: JUDITH A. HARD
Claimant's attorney: Gabriel G.H. Midalgo, 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: September 7, 2010
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant moves this Court for an order pursuant to CPLR 3211(b), striking the affirmative defenses of defendant as set forth in defendant's verified answers to Claim No. 117817 and Claim No. 117818. Defendant opposes the motion on the basis that claimant has failed to set forth any grounds to support his position. For the reasons set forth below, claimant's motion to strike defendant's affirmative defenses in both claims is denied.

CLAIM NO. 117817

Claim No. 117817, which was filed on December 18, 2009, alleges mail tampering and the denial of access to courts. Claimant served said claim on December 18, 2009, and defendant rejected it as improperly verified. Claimant re-served said claim on January 4, 2010. On January 19, 2010, defendant served two verified answers, one addressing claimant's improperly verified claim and the other addressing the verified claim which was served subsequently.

In its verified answers, defendant raised as affirmative defenses, that claimant failed to state an accrual date and therefore the claim is not a proper claim; and that if the facts demonstrate that any issues pertinent to the action have been settled, paid or released by claimant, claimant is precluded from re-litigating those issues and actions in the claim. In addition, defendant raised, only in its verified answer to the improperly verified claim, that the claim is defective because it is not verified.

CLAIM NO. 117818

Claim No. 117818, which was also filed on December 18, 2009, alleges mail tampering and the refusal to provide certified mail. Claimant served said claim on December 18, 2009, and defendant rejected it as improperly verified. Claimant re-served said claim on January 4, 2010. On January 19, 2010, defendant served two verified answers, one addressing claimant's improperly verified claim and the other addressing the verified claim which was served subsequently.

In its verified answer to the improperly verified claim, defendant raised, as affirmative defenses, that the claim is defective because it is unverified; 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 that any recovery by claimant be diminished proportionately; and that if the facts demonstrate that any issues pertinent to the action have been settled, paid or released by claimant, claimant is precluded from re-litigating those issues and actions in the claim.

In its verified answer to the second claim it was served with, defendant raised, as affirmative defenses, 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 that any recovery by claimant be diminished proportionately; and that if the facts demonstrate that any issues pertinent to the action have been settled, paid or released by claimant, claimant is precluded from re-litigating those issues and actions in the claim.

Thereafter, on or about March 19, 2010, claimant re-served the December 18, 2009 claim on defendant by regular mail. Defendant served a verified answer to said claim on April 7, 2010. In said verified answer, defendant raised, as affirmative defenses, that the Court lacks personal jurisdiction over the defendant and subject matter jurisdiction over the claim because the claim was served by regular mail and not personal service or certified mail, return receipt requested; that the claim fails to state a cause of action against defendant; that defendant, through its agents and/or employees took actions which were privileged as being judicial, quasi-judicial or discretionary; and that if the facts demonstrate that any issues pertinent to the action have been settled, paid or released by claimant, claimant is precluded from re-litigating those issues and actions in the claim.

MOTION

Claimant now moves to strike defendant's affirmative defenses in both claims. In support of his motion, claimant alleges that each of this claims is verified, and further, that all relevant dates are provided in the claims and/or in an exhibit annexed to claim number 117818. In response, defendant concedes that its affirmative defenses regarding the improperly verified claims are now moot, as claimant has re-served both claims with proper verification and defendant removed said affirmative defenses from its subsequently served verified answers.

As to the remaining affirmative defenses, defendant relies on CPLR 3018 (b), which provides, in pertinent part, that "[a] party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading." Defendant states that its affirmative defenses were set forth in order to avoid claimant's surprise and to raise issues of fact not contained in the claim. Further, defendant argues that claimant has failed to establish any reason for the dismissal of defendant's remaining affirmative defenses. The Court agrees.

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 an 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 answers, except as to the defenses regarding verification which were omitted in defendant's most recently filed verified answers to each claim, lack merit or are otherwise deficient.

Accordingly, claimant's motion to strike defendant's affirmative defenses is denied.

September 7, 2010

Albany, New York

JUDITH A. HARD

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion and Affidavit, sworn to by claimant on March 3, 2010, with Exhibit;

2. Affirmation in Opposition to Claimant's Motion to Strike Defendant's Affirmative Defenses, affirmed by Roberto Barbosa, AAG, on May 26, 2010.

Papers Filed:

Claim No. 117817: Claim, filed on December 18, 2009, Order of Hon. Richard E. Sise, Presiding Judge, filed on January 14, 2010, two Verified Answers, both filed on January 21, 2010.

Claim No. 117818: Claim, filed on December 18, 2009, Order of Hon. Richard E. Sise, Presiding Judge, filed on January 14, 2010, two Verified Answers, both filed on January 21, 2010, Verified Answer, filed on April 9, 2010.