NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT
March 26, 2009
EFRAIN SUAREZ, APPELLANT,
STATE OF NEW YORK, RESPONDENT.
The opinion of the court was delivered by: Malone Jr., J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Calendar Date: February 19, 2009
Before: Cardona, P.J., Peters, Malone Jr., Stein and McCarthy, JJ.
MEMORANDUM AND ORDER
Appeal from an order of the Court of Claims (Ferreira, J.), entered December 21, 2006, which denied claimant's motion to strike defendant's affirmative defenses and granted defendant's cross motion to partially dismiss the claim.
Claimant, an inmate, allegedly fell out of bed and sustained injuries. Claimant thereafter commenced this action in the Court of Claims, alleging that prison personnel acted negligently and that his civil rights were violated by those employees' failure to correct known deficiencies with the bed and their deliberate indifference to the medical needs arising from his injuries. Defendant answered and asserted four affirmative defenses, which claimant moved to strike. Defendant withdrew one of the defenses and cross-moved to dismiss claimant's constitutional claims. The Court of Claims denied claimant's motion and granted defendant's cross motion. Claimant appeals.*fn1
We affirm. As is relevant here, defendant alleged contributory and third-party negligence defenses in its answer, and those allegations must be accepted as true on a motion to strike (see Capital Tel. Co. v Motorola Communications & Elecs., 208 AD2d 1150, 1150 ). Claimant's motion papers are devoid of any evidence showing that neither he nor a third party was to some degree responsible for his alleged injuries and/or damages. As claimant failed to conclusively show that the defenses lacked merit, the Court of Claims appropriately denied his motion (see Pellegrino v Millard Fillmore Hosp., 140 AD2d 954, 955 ; compare Thy Tran v Avis Rent A Car, 289 AD2d 731, 732 ).
Cardona, P.J., Peters, Stein and McCarthy, JJ., concur.
ORDERED that the order is affirmed, without costs.