Claimant's motion to dismiss defendant's defenses is granted in part and denied in part.
|Claimant short name:||FITZHUGH|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||FREDDY FITZHUGH
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Charles Lim, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 19, 2019|
|See also (multicaptioned case)|
Claimant moves to dismiss the five defenses in defendant's answer to the inmate/claimant's action alleging that defendant negligently caused claimant to suffer personal injuries as a result of claimant slipping and falling on an allegedly "frozen pavement" at Clinton Correctional Facility on November 13, 2018.
Defendant opposes the claimant's motion.
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]).
Defendant has offered no specific factual or legal opposition with respect to its "FOURTH" numbered defense asserting that its liability, if any, should be apportioned pursuant to CPLR Article 16 and that defense is, consequently, dismissed.
Defendant's remaining four numbered defenses allege, respectively, that: "FIRST," the Court lacks jurisdiction because the claim was served by regular mail rather than by certified mail return receipt requested; "SECOND," claimant's damages were caused by claimant's own comparative negligence and/or culpable conduct; "THIRD," the risk of slipping and falling was open and obvious and that risk was assumed by claimant; and, "FIFTH," claimant failed to act to mitigate his injuries and damages.
Claimant does not deny that his claim was served by regular mail rather than by certified mail return receipt requested and claimant has thus failed to prove that defendant's "FIRST" defense has no merit.
The Court agrees with defendant that its "SECOND," "THIRD," and "FIFTH" defenses alleging, respectively, that claimant's damages were caused by claimant's own culpable conduct, by claimant's assumption of an open and obvious risk and that claimant failed to act to mitigate his injuries and damages, each involve fact issues subject to further discovery and/or trial. Claimant has "failed to conclusively show that the defenses [lack] merit" (Suarez, 60 AD3d at 1243).
The claimant's motion to dismiss defendant's defenses is granted as to defendant's defense numbered "FOURTH" and is denied as to defendant's defenses numbered "FIRST," "SECOND," "THIRD," and "FIFTH."
The claimant's motion is, accordingly, granted in part and denied in part, as set forth above.
November 19, 2019
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Notice of Motion, filed October 9, 2019;
2. Affidavit of Freddy Fitzhugh, sworn to October 5, 2019, and annexed exhibits;
3. Affirmation in Opposition to Claimant's Motion to Dismiss Affirmative Defenses of Charles Lim, dated November 1, 2019.