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Supreme Court, Appellate Division, Third Department, New York.

Efrain SUAREZ, Appellant, v. STATE of New York, Respondent.

Decided: March 26, 2009

Before:  CARDONA, P.J., PETERS, MALONE JR., STEIN and McCARTHY, JJ. Efrain Suarez, Malone, appellant pro se. Andrew M. Cuomo, Attorney General, Albany (Julie S. Mereson of counsel), for respondent.

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.1

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 A.D.2d 1150, 1150, 617 N.Y.S.2d 652 [1994] ).   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 A.D.2d 954, 955, 529 N.Y.S.2d 632 [1988];  compare Thy Tran v. Avis Rent A Car, 289 A.D.2d 731, 732, 734 N.Y.S.2d 662 [2001] ).

ORDERED that the order is affirmed, without costs.


1.   Inasmuch as claimant has failed to brief any issue regarding defendant's successful cross motion, we deem any argument in that regard to be waived (see Custer v. Cortland Hous. Auth., 266 A.D.2d 619, 620 n. 1, 697 N.Y.S.2d 739 [1999], lv. denied 94 N.Y.2d 761, 707 N.Y.S.2d 142, 728 N.E.2d 338 [2000] ).



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