Claimant's motion to dismiss affirmative defenses denied. Pleadings not attached to motion, and claimant's submission does not address the merits of the defenses.
|Claimant short name:||SIMPSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||THEODORE SIMPSON, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 10, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for lost property. Claimant moves for summary judgment dismissing the affirmative defenses in the answer. Defendant opposes the motion.
As an initial matter, although noticed as a motion for summary judgment under CPLR 3212, the motion seeks to dismiss the affirmative defenses asserted in the answer, which is properly brought under CPLR 3211 (b). Thus, it is unclear as to whether claimant is seeking to strike the affirmative defenses under CPLR 3211 or seeking summary judgment on the claim under CPLR 3212. Defendant's response is addressed to summary judgment. In either event, the motion will be denied for the following reasons.
Defendant persuasively argues that the motion for summary judgment should be denied because it is unsupported by a copy of the pleadings and therefore does not comply with CPLR 3212 (b). "[M]ovant's failure to include a copy of the pleadings in the papers supporting a motion for summary judgment 'require[s] summary denial of the motion' " (Greene v Wood, 6 AD3d 976 [3d Dept 2002] quoting Welton v Drobnicki, 298 AD2d 757, 757 [3d Dept 2002]) even if defendant possessed a copy of the pleadings and/or that the pleadings have been filed with the Clerk of the Court of Claims (see Senor v State 23 AD3d 851, 851 [3d Dept 2005]). To the extent that claimant's motion seeks to strike affirmative defenses from defendant's answer, CPLR 3211 (b) authorizes dismissal of a defense that "is not stated or has no merit." "It is well settled that '[o]n a motion to dismiss a defense pursuant to CPLR 3211 (b), all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof' " (Capital Tel. Co. v Motorola Communications & Elecs., 208 AD2d 1150, 1150 [3d Dept 1994], quoting Grunder v Recckio, 138 AD2d 923 [4th Dept 1988]; see Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]). "[A]n affirmative defense should not be dismissed if there is any doubt as to its availability" (Thy Tran v Avis Rent A Car, 289 AD2d 731, 732 [3d Dept 2001]; see Nahrebeski v Molnar, 286 AD2d 891 [4th Dept 2001]), but the movant "[bears] the burden of demonstrating that those defenses [are] without merit as a matter of law" (Vita v New York Waste Servs, LLC, 34 AD3d 559, 559 [2d Dept 2006]). Here, claimant's submissions in support of his motion to dismiss the affirmative defenses wholly fail to support his burden. First, as indicated above, claimant's motion is not accompanied by a copy of the defendant's answer that sets forth the affirmative defenses, and thus it is not possible to assess its merits. Further, claimant articulates no arguments addressed to the merits of the affirmative defenses, and his submission contains mere assertions that he exhausted his administrative remedies and that his claim is meritorious, which lack evidentiary support.
Accordingly, it is
ORDERED, that claimant's motion number M-91599 is DENIED.
April 10, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Notice of Motion for Summary Judgment, filed December 29, 2017;
(2) Affidavit of Theodore Simpson in Support of Notice of Motion for Summary Judgment,
sworn to December 22, 2017;
(3) Affirmation of Jeane L. Strickland Smith, AAG, in opposition to Motion for Summary
Judgment, dated January 30, 2018.