|Claimant short name:||SITAL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Frans Sital, 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 10, 2010|
|See also (multicaptioned case)|
Claimant moves this Court for an Order pursuant to CPLR 3211(b), striking the affirmative defenses set forth by defendant in its Verified Answer. Defendant opposes the motion on the basis that claimant has failed to establish any reason for any of the affirmative defenses to be dismissed. The Court agrees and for the reasons set forth below, claimant's motion is denied.
Claim No. 116817, which was filed on May 6, 2009, seeks reimbursement for sneakers which were allegedly lost by employees of the New York State Department of Correctional Services. In its Verified Answer to said Claim, defendant raised the following affirmative defenses: (1) that if any negligence or fault or want of care other than that of the claimant caused or contributed to the cause of the injuries and/or damages alleged in the claim, it was the negligence or fault or want of care of some third person or persons for whose negligence or fault or want of care the defendant was not responsible; and (2) that in the event the facts, as discovered, demonstrate that any issues pertinent to this action, or any other action have been settled, paid, or released by the claimant, the claimant will be precluded from relitigating those issues and actions in this claim.
Claimant now moves to strike defendant's affirmative defenses. In support of his motion, claimant alleges that the loss of his property is attributable only to defendant and that the loss is not the fault of a third person or persons over whom defendant is not responsible. In addition, claimant states that claimant should not be precluded from relitigating any issues which were settled, paid or released by him. In support of his position, claimant annexes a copy of his Inmate Claim Form, dated January 4, 2009, which sets forth his claim for missing sneakers, as well as a copy of the Facility Review sheet which indicates the facility's approval for reimbursement in a sum of $18.00, which was rejected by claimant and affirmed by the superintendent.
In opposition to claimant's motion, defendant relies on CPLR § 3018 (b), which provides, in relevant 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. Defendant states that affirmative defenses are not dispositive of a claim but merely assertions by a party that serve as a defense and must be raised in the answer, and that it raised the defenses in its answer for that reason (see paragraph 5 of Defendant's Affirmation in Opposition). Defendant argues that claimant has failed to establish any reason for the dismissal of defendant's 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 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. The documents submitted in support of claimant's motion are not dispositive. Moreover, if the affirmative defenses set forth by defendant are proved, defendant's liability would be negated or at least limited.
Accordingly, claimant's motion to strike defendant's affirmative defenses is denied.
September 10, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion and Affidavit, sworn to by claimant on June 7, 2010, with Exhibit;
2. Affirmation in Opposition to Claimant's Motion to Strike Defendant's Affirmative Defenses, affirmed by Roberto Barbosa, AAG, on June 25, 2010.
3. Reply, sworn to by claimant on June 30, 2010.
Papers Filed: Claim, filed May 6, 2009; Verified Answer, filed June 3, 2009; and Order, filed June 3, 2009.