Opinion
# 2021-015-012 Claim No. 131536 Motion No. M-96060
01-26-2021
DAMON ASH v. THE STATE OF NEW YORK
Damon Ash, Pro Se Honorable Letitia James, Attorney General By: Anthony Rotondi, Esq., Assistant Attorney General
Synopsis
Claimant's motion to dismiss affirmative defenses was denied as he failed to demonstrate that the defenses lacked merit.
Case information
| UID: | 2021-015-012 |
| Claimant(s): | DAMON ASH |
| Claimant short name: | ASH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131536 |
| Motion number(s): | M-96060 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Damon Ash, Pro Se |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Anthony Rotondi, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 26, 2021 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, proceeding pro se, moves to dismiss defendant's FIRST through SEVENTH affirmative defenses pursuant to CPLR 3211 (b) and to amend his claim to increase the ad damnum clause.
Claimant, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), seeks damages for medical negligence, wrongful confinement, violation of his religious freedom, and cruel and unusual punishment.
CPLR 3211 (b) permits a party to "move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." To succeed on a motion to dismiss defenses pursuant to CPLR 3211 (b), the claimant bears the burden of demonstrating the defenses lack merit as a matter of law (Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]; Vita v New York Waste Servs., LLC, 34 AD3d 559 [2d Dept 2006]; Santilli v Allstate Ins. Co., 19 AD3d 1031 [4th Dept 2005]). For purposes of such a motion, "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" (Grunder v Recckio, 138 AD2d 923 [4th Dept 1988]). "If there is doubt as to the availability of a defense, it should not be dismissed" (Pellegrino v Millard Fillmore Hosp., 140 AD2d 954, 955 [4th Dept 1988] [internal quotation marks and citation omitted]).
Here, claimant's motion fails to include a notice of motion and supporting affidavit as required by CPLR 2211 and 2214 (a) and (b). In addition, claimant failed meet his burden of establishing that the subject defenses lack merit as a matter of law. He did not submit a copy of the pleadings, a copy of the notice of intention to file a claim or a copy of his affidavit of service, all of which are necessary to determine the merit of some or all of the defenses which he seeks to dismiss. In fact, claimant submitted no proof in support of his motion. Claimant's request to amend his claim to increase the ad damnum must be denied for similar reasons. Claimant failed to submit a copy of his proposed claim or any proof establishing the potential merit of the amendment (see CPLR 3025 [b]; cf. R. Vig Props., LLC v Cohen, 153 AD3d 565 [2d Dept 2017]; Thomas v Laustrup, 34 AD3d 1115, 1116-1117 [3d Dept 2006]). Accordingly, claimant's motion is denied.
January 26, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of motion dated October 8, 2020;
2. Affirmation in Opposition dated November 12, 2020, with Exhibit A;
3. Claimant's letter in reply dated November 18, 2020.