Opinion
# 2019-053-502 Claim No. 128856 Motion No. M-92989
01-10-2019
RANDOLPH SCOTT v. STATE OF NEW YORK
RANDOLPH SCOTT, Pro Se HON. LETITIA JAMES New York State Attorney General BY: Bernard F. Sheehan, Esq. Assistant Attorney General
Synopsis
Pro se inmate's motion to strike the answer and affirmative defenses of the State is denied as claimant's motion papers fail to sustain his burden to establish that the answer and affirmative defenses lack merit as a matter of law.
Case information
| UID: | 2019-053-502 |
| Claimant(s): | RANDOLPH SCOTT |
| Claimant short name: | SCOTT |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128856 |
| Motion number(s): | M-92989 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | RANDOLPH SCOTT, Pro Se |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Bernard F. Sheehan, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 10, 2019 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Randolph Scott, an inmate proceeding pro se, moves to strike the State's answer and the affirmative defenses asserted therein. Defendant opposes the motion.
Pursuant to CPLR 3211 (b), a party may move for a judgment dismissing one or more of defendant's affirmative defenses, on the ground that a defense is not stated or has no merit. An affirmative defense, however, should not be dismissed if there is any doubt as to its availability (Nahrebeski v Molnar, 286 AD2d 891 [4th Dept 2001]). All of the allegations contained in a disputed affirmative defense "must be accepted as true on a motion to strike" (Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]). Claimant has the burden of demonstrating that the defendant's affirmative defenses are without merit as a matter of law (Gonzalez v Wingate at Beacon, 137 AD3d 747 [2d Dept 2016]).
Claimant's motion is unsupported by either a copy of the claim or the answer. For that reason alone, claimant's motion may be denied (Scott v The State of New York, UID No. 2016-041-039 [Ct Cl, Milano, J., June 23, 2016]). Moreover, other than repeatedly alleging that his claim should be "liberally construed," claimant's motion papers are completely devoid of any evidence showing that defendant's answer and affirmative defenses lack merit (Suarez 60 AD3d at 1243).
Accordingly, claimant's motion no. M-92989 to strike defendant's answer and the affirmative defenses therein is denied.
January 10, 2019
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion and affidavit of Randolph Scott sworn to October 10, 2018; 2. Opposing affirmation of Assistant Attorney General Bernard F. Sheehan affirmed December 10, 2018, with annexed Exhibit A; 3. Reply affidavit of Randolph Scott sworn to December 24, 2018