Pro se Claimant's Motion to Strike Affirmative Defenses raised in State's Answer and for Summary Judgment denied.
|Claimant short name:||FUENTES|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Jesus Fuentes, Pro Se|
|Defendant's attorney:||BARBARA D. UNDERWOOD
Attorney General of the State of New York
By: Glenn C. King, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||August 8, 2018|
|See also (multicaptioned case)|
For the reasons set forth below, the motion of Claimant, Jesus Fuentes, appearing pro se, pursuant to CPLR 3211(b) for an order to dismiss the defenses in Defendant's Answer to the Claim and for summary judgment in his favor, pursuant to CPLR 3212, is denied.
This pro se Claim, which was filed with the office of the Clerk of the Court on January 17, 2018, alleges that certain items of Claimant's personal property were lost when he was transferred from Franklin Correctional Facility to Fishkill Correctional Facility on February 3, 2017.
The State's Answer to the Claim, which was filed with the office of the Clerk of the Court on January 19, 2018, admits the allegations in the first paragraph of the Claim, denies knowledge or information sufficient to form a belief as to many of the allegations contained in the Claim, and denies the allegations contained in all the other paragraphs of the Claim. The State also asserts six defenses in its Answer.
CPLR 3018 relates to responsive pleadings. Subdivision (a) refers to denials and states that "[a] party shall deny those statements known or believed by him to be untrue. He shall specify those statements as to the truth of which he lacks knowledge or information sufficient to form a belief and this shall have the effect of a denial."
According to Professor Patrick M. Connors, when an allegation is denied, the allegation must be proved by the party pleading it (see Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3018:2, at 299). The burden, thus, is upon Claimant to establish the allegations that were denied in the State's answer.
A motion to dismiss defenses may be made on the ground that a defense is not stated or has no merit (CPLR 3211[b]). "[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]). "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 and Elecs., 208 AD2d 1150, 1150 [3d Dept 1994], quoting Grunder v Recckio, 138 AD2d 923, 923 [4th Dept 1988]; see Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]). Moreover, the movant "[bears] the burden of demonstrating that those defenses [are] without merit as a matter of law" (Vita v New York Waste Services, LLC, 34 AD3d 559, 559 [2d Dept 2006]; see Suarez v State of New York, 14 Misc 3d 1230[A] [Ct Cl 2006], affd 60 AD3d 1243, supra).
The State's first defense asserts that Claimant's damages were caused by his own culpable conduct. If proved, Claimant's culpable conduct would negate, or at least limit, Defendant's liability. Accordingly, this defense must stand pending a factual determination of the issue.
The State's second defense asserts that Claimant's damages were caused by the conduct of a third party over whom the State has no legal responsibility. If proved, the culpable conduct of a party over whom the State has no legal responsibility would negate, or at least limit, Defendant's liability. Accordingly, this defense must stand pending a factual determination of the issue.
The State's third defense asserts that it is liable only with respect to property that Claimant owned and rightly possessed pursuant to Department of Corrections and Community Supervision directives, and, to the extent that Claimant did not own the property at issue, or possess the property in compliance with the directives, there can be no recovery. It further asserts that, if the value of the individual items exceeds the value limitations set forth in the directives, then Claimant's recovery should be so limited. It is Claimant's burden to establish that he owned the property allegedly lost and its value. If the value claimed exceeds the value set forth in the directives, it could limit Defendant's liability. Accordingly, this defense must stand pending a factual determination of the issue.
The State's fourth defense asserts that the State is entitled to immunity on the basis that the State's acts or omissions complained of in the Claim were undertaken as part of its governmental function, that Defendant owed no special duty to Claimant, and/or Defendant's alleged acts or omissions were the result of an exercise of discretion. If proved, this defense would result in the Claim's dismissal. Accordingly, this defense must stand pending a factual determination of the issue.
The State's fifth defense asserts that Claimant failed to exhaust the administrative remedies at the facility level before serving and filing his Claim, as required by Court of Claims Act § 10(9). If proved, this defense would result in the Claim's dismissal. Accordingly, this defense must stand pending a factual determination of the issue.
The State's sixth defense asserts that the Court lacks subject matter jurisdiction over the Claim as it was not filed and served within 120 days after the date on which Claimant exhausted his administrative remedies as required by Court of Claims Act § 10(9). Again, if proved, this defense would result in the Claim's dismissal. Accordingly, this defense must stand pending a factual determination of the issue.
The portion of Claimant's Motion to strike the Answer, therefore, is denied
The Court now turns to the portion of the Motion that seeks summary judgment. Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). CPLR 3212(b) requires that a motion for summary judgment be supported by a copy of the pleadings (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 ). In support of his Motion, Claimant did not submit a copy of the Claim or Verified Answer to the Claim. The failure to include all the pleadings in support of a motion for summary judgment requires that the motion be denied, regardless of the merits of the motion (Davis v State of New York, 151AD3d 1411 [3d Dept 2017]; Senor v State of New York, 23 AD3d 851 [3d Dept 2005]; Bonded Concrete, Inc. v Town of Saugerties, 3 AD3d 729 [3d Dept 2004], lv dismissed 2 NY3d 793 ; Deer Park Assocs. v Robbins Store, 243 AD2d 443 [2d Dept 1997]; CPLR 3212[b]).
CPLR 3212(b) also requires that the motion be supported by "available proof." "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 ; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 ). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
However, assuming, arguendo, that Claimant had supported his motion by including a copy of all the pleadings, the Court further finds that Claimant failed to make the required prima facie showing of entitlement to judgment as a matter of law, i.e., that the items were lost, that he owned the items allegedly lost, that the items were lost as a result of the Defendant's negligence, and the value of the lost items.
Therefore, based upon the foregoing, that portion of Claimant's Motion for summary judgment in his favor is denied.
August 8, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Claimant's Motion to dismiss the defenses in Defendant's Answer and for summary judgment:
Notice of Motion, Affidavit,
Exhibit Attached, & Memorandum of Law 1
Affirmation in Opposition &
Exhibits Attached 2
Reply Affidavit 3
Filed Papers: Claim, Verified Answer