Opinion
# 2015-016-074 Claim No. 126308 Motion No. M-87147 Cross-Motion No. CM-87438
11-25-2015
PAUL HENRY v. THE STATE OF NEW YORK
Paul Henry, Pro se Eric T. Schneiderman, Attorney General By: Douglas H. Squire, AAG
Synopsis
Case information
| UID: | 2015-016-074 |
| Claimant(s): | PAUL HENRY |
| Claimant short name: | HENRY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126308 |
| Motion number(s): | M-87147 |
| Cross-motion number(s): | CM-87438 |
| Judge: | Alan C. Marin |
| Claimant's attorney: | Paul Henry, Pro se |
| Defendant's attorney: | Eric T. Schneiderman, Attorney General By: Douglas H. Squire, AAG |
| Third-party defendant's attorney: | |
| Signature date: | November 25, 2015 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Paul Henry has moved to strike the answer and affirmative defenses of the State of New York to his claim which arose from a burn he suffered while working in the kitchen of the Sullivan Correctional Facility. For its part, the defendant opposes claimant's motion and cross moves for summary judgment.
The State interposed nine affirmative defenses, the first of which was that Mr. Henry's claim was served by an improper method - - regular mail. Affirmative defenses two through five are based on a lack of timeliness. The sixth affirmative defense is that the acts or omissions of the staff at Sullivan Correctional Facility are immune from liability because they were discretionary actions made within the scope of official duty. Affirmative defenses seven through nine cover culpable conduct, assumption of risk and the failure to mitigate damages.
A defendant is entitled to have its pleadings "liberally construed" (Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743 [2d Dept 2008]). The striking of affirmative defenses is generally not warranted in the absence of prejudice to claimant or where the claimant fails " to conclusively show that the defenses lacked merit" (Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]). Neither prejudice nor lack of merit has been demonstrated with respect to these affirmative defenses.
5 Weinstein-Korn-Miller, NY Civ Prac ¶ 3018.14 at 30-432.
The State's affirmative defenses are not dispositive, and like the allegations in the claim, are assertions made by a party. As a general proposition, to the extent that affirmative defenses are raised at trial, defendant must prove their validity, and claimant would be afforded the opportunity to challenge them. Thus, the Court will not strike the affirmative defenses to Mr. Hurley's claim.
However, what is dispositive is defendant's cross motion on the method of service. Mr. Hurley's claim was served by regular mail on June 17, 2015, as is shown by the copy of the envelope in which it was mailed.
The copy of the envelope is the last page of exhibit B of defendant's Affirmation in Opposition to Claimant's Motion to Strike and In Support of Defendant's Cross Motion for Summary Judgment. Mr. Hurley submitted a receipt for certified mail, but this was from an earlier pleading, and was received by the Attorney General's Office on October 28, 2013 - - this was exhibit A to claimant's Affidavit In Support of Motion to Strike Defendant's Affirmative Defenses and Answer.
The Court of Claims Act requires that pleadings (either a claim or a notice of intention to file a claim), unless served personally, be served by certified mail, return receipt requested (section 11[a][i]).
The Court of Appeals has stated that "Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed . . ." (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). In Dreger, the Court of Appeals upheld the dismissal of two suits in the Court of Claims because the method of service was regular mail.
In view of the foregoing, and having considered the submissions of the parties, IT IS ORDERED that motion No. M-87147 is denied and cross motion CM-87438 is granted.
The following were reviewed: from claimant - - a Notice of Motion to Strike Defendant's Affirmative Defenses and Answer and an Affidavit In Support of Motion to Strike Defendant's Affirmative Defenses and Answer (with exhibits A through D); from defendant - - a Notice of Cross-Motion and an Affirmation in Opposition to Claimant's Motion to Strike and In Support of Defendant's Cross Motion for Summary Judgment (with exhibits A through C).
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November 25, 2015
New York, New York
Alan C. Marin
Judge of the Court of Claims