Claimant's motion to dismiss defendant's defenses and for sanctions is granted in part and denied in part.
|Claimant(s):||GLASCO WRIGHT, 90-A-6050|
|Claimant short name:||WRIGHT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||GLASCO WRIGHT
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Glenn C. King, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 28, 2019|
|See also (multicaptioned case)|
Claimant moves to dismiss the eight defenses in defendant's answer to claimant's action alleging loss of inmate personal property (Court of Claims Act 10 ). Claimant also seeks sanctions against defendant pursuant to CPLR 8303-a.
Defendant opposes the claimant's motion.
Defendant has offered no specific persuasive opposition with respect to its defenses numbered "Fifth" (regarding claimant's notice of intention), "Sixth" (failure to exhaust administrative remedy) and "Eighth" (Article 78 as exclusive remedy) and those defenses are therefore dismissed.
CLR 3211 (b) provides as follows:
"A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit."
Greco v Christoffersen (70 AD3d 769, 771 [2d Dept 2010]), explains that:
"[W]hen moving to dismiss or strike an affirmative defense, the [claimant] bears the burden of demonstrating that the affirmative defense is 'without merit as a matter of law' (Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept 2006]). In reviewing a motion to dismiss an affirmative defense, [the] Court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference."
The law requires that the allegations contained in the challenged defenses "must be accepted as true on a motion to strike" and where the "claimant failed to conclusively show that the defenses lacked merit" the motion is properly denied (Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]).
The claim alleges that defendant lost or destroyed certain of claimant's criminal trial transcripts. Defendant opposes dismissal of its first three defenses which allege, respectively, claimant's comparative negligence and/or culpable conduct ("First Defense"), third-party negligence ("Second Defense") and limitation of claimant's recovery pursuant to lost property regulations ("Third Defense").
The Court agrees with defendant that these three stated defenses involve "factual issues that must await a trial for resolution" and finds that claimant has not shown that the challenged defenses designated "First," "Second" and "Third" lack merit as a matter of law. The claimant's motion to dismiss the first three defenses stated in defendant's answer is denied.
Remaining in contention are defendant's "Fourth Defense" (Discretionary Governmental Function Immunity)and "Seventh Defense" (failure to commence action within 120 days of exhaustion of administrative remedy).
Although the discretionary governmental function immunity defense generally has little or no application to the typical inmate lost property claim, the Court notes that the claimant's very first allegation of negligence in his claim (para "4") is that "[d]efendants failed to properly investigate the loss of [p]ersonal [p]roperty claim."
While it is well settled that a separate cause of action for negligent investigation does not exist in the State of New York (Ellsworth v City of Gloversville, 269 AD2d 654, 657 [3d Dept 2000]), the Court also recognizes defendant's concern that, in view of the claim's allegations, "immunity may have some relevance to the procedures defendant had in place or with respect to the [property loss] investigation that was undertaken." In that regard, claimant's allegation of negligent investigation is subject to the absolute defense of discretionary governmental function immunity (Hines v City of New York, 142 AD3d 586, 586-87 [2d Dept 2016]). Consequently, claimant's motion to dismiss defendant's "Fourth Defense" (Discretionary Governmental Function Immunity) is denied.
Finally, claimant seeks dismissal of defendant's "Seventh Defense" (failure to commence action within 120 days of exhaustion of administrative remedy). Defendant's Exhibit D to its answering affirmation shows that claimant exhausted his administrative remedy on or about May 1, 2018. Defendant's answering affirmation states that claimant "served his claim on the defendant on June 15, 2018" and "filed the claim with the New York State Court of Claims on July 2, 2018." The record offered by defendant demonstrates that claimant commenced his claim within 120 days of exhaustion of his administrative remedy. The "Seventh Defense" in defendant's answer is therefore dismissed.
To summarize: Claimant's motion to dismiss defendant's defenses is granted with respect to defendant's "Fifth Defense, "Sixth Defense, "Seventh Defense" and "Eighth Defense" and denied with respect to defendant's "First Defense, "Second Defense, "Third Defense" and "Fourth Defense."
Claimant has not set forth any factual allegations sufficient to support, or even consider, an award of sanctions against defendant pursuant to CPLR 8303-a.
The claimant's motion is, accordingly, granted in part and denied in part, as set forth above.
March 28, 2019
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Notice of Motion to Dismiss Defendant's Affirmative Defenses pursuant To CPLR 3211 (b) and CPLR 8303-a Awarding Sanctions, filed February 11, 2019;
2. Affidavit of Glasco Wright, sworn to February 7, 2019, and annexed exhibits;
3. Affirmation in Opposition to Motion to Dismiss Defendant's Affirmative Defenses and for Sanctions of Glenn C. King, dated February 19, 2019, and attached exhibits;
4. Claimant's Response to Defendant's Affirmation in Opposition to Motion to Dismiss Defenses and for Sanctions, verified February 24, 2019.