Notice of Motion, Affidavit, with Exhibits (Motion No. M-61077) 12,13
In his filed claim, claimant alleges that on October 6, 1998, while he was an
inmate at Willard Drug Treatment Center, he was assaulted by two correction
officers. He further alleges that following the assault, he was denied proper
medical attention, and that he was denied due process at a disciplinary hearing
conducted after the incident, resulting in false imprisonment and unlawful
A notice of intention was served upon the Attorney General by claimant on
December 24, 1998, while claimant was an inmate at Cayuga Correctional Facility,
which address was set forth on the notice of intention. Subsequently, on
October 4, 1999, claimant served his claim upon the Attorney General by regular,
first class mail, listing his address at the Broome County Public Safety
Building, 897 Front Street, Binghamton, New York. His claim was also filed with
the Court on October 4, 1999.
As set forth in the papers before the Court on these motions, it appears that
defendant attempted to serve and file a pre-answer motion to dismiss the claim
for improper service. The motion papers were mailed to claimant at Cayuga
Correctional Facility, the address set forth on claimant's notice of intention.
Claimant, however, had been released from Cayuga Correctional Facility and at
that time was being held in custody at the Broome County Jail in Binghamton,
which is the address set forth on his claim.
Apparently, when defendant's attorney attempted to file the motion papers with
the Clerk's office, the discrepancy in addresses was noted, and the motion
papers were rejected for filing based upon "an improper Affidavit of Service."
Claimant, apparently not receiving the motion papers on a timely basis, filed a
motion seeking a default judgment (Motion No. M-60795). Defendant has responded
with a cross-motion (Cross-Motion No. CM-60943) not only opposing claimant's
request for a default judgment, but also seeking to vacate any default judgment
granted or to be granted by this Court.
In the meantime, defendant also served and filed its motion to dismiss (Motion
No. M-60859) at claimant's proper address. Claimant has since responded with
another motion (Motion No. M-61077) seeking leave to amend his claim.
The Court will first address defendant's motion to dismiss (Motion No. M-60859)
since this motion, if granted, would render all of the other motions herein
moot. As stated above, defendant has moved to dismiss this claim on the basis
of improper service, in that the claim was mailed to the Attorney General by
regular, first class mail.
Court of Claims Act, § 11(a) requires that a claim be served upon the
Attorney General either by personal delivery or by certified mail, return
receipt requested. The service and filing requirements of the Court of Claims
Act are jurisdictional prerequisites to the institution and maintenance of a
claim, and therefore must be strictly construed (Byrne v State of New
York, 104 AD2d 782, lv denied 64 NY2d 607).
Court of Claims Act, § 11(c), however, requires that any objection based
upon a failure to comply with either the time limitations or manner of service
requirements must be raised either in the responsive pleading or by a motion to
dismiss made before service of the responsive pleading is required. Failure to
do so results in a waiver of the defense or objection. Pursuant to § 206.7
of the Uniform Rules for the Court of Claims, service of responsive pleadings
must be made within 40 days of service of the pleading to which it responds.
In this case, defendant therefore had 40 days from October 4, 1999, the date of
service of the claim, to either answer the claim and set forth therein an
affirmative defense of improper service, or in the alternative to serve and
file a motion to dismiss based upon improper service. Within such 40 day
period, it appears that defendant elected the latter option and attempted to
serve and file a motion to dismiss. As set forth above, however, defendant was
unable to either serve or file this motion within the 40 day time period
permitted by § 206.7 of the Uniform Rules, since the motion was mailed to
claimant at an incorrect address, to wit: the address set forth on claimant's
notice of intention, and not the address set forth on his claim. The Court
notes that claimant had clearly provided his then current address when he served
and filed his claim. By the time that defendant was made aware that the motion
papers had been mailed to the incorrect address, the 40 day time period
permitted to bring a dismissal motion based upon improper service had expired.
Accordingly, since defendant's initial dismissal motion was not accepted for
filing within the 40 day time period provided by § 206.7 of the Uniform
Rules, nor was there any proof to indicate that claimant had received the motion
papers within the same time frame, and since claimant had provided the defendant
with his correct address at the time of filing his claim, this Court concludes
that defendant has waived its defense of improper service pursuant to Court of
Claims Act, § 11(c). Its motion to dismiss for improper service (Motion
No. M-60859), served and filed beyond the 40 days permitted by § 11(c) and
§ 206.7 of the Uniform Rules, must therefore be denied.
The Court must therefore address claimant's motion (Motion No. M-60795) seeking
a default judgment against the State for failure to answer his claim.
As set forth above, it is undisputed that defendant's attorney attempted to
serve and file a motion to dismiss within the 40 day period provided by §
206.7 of the Uniform Rules. As set forth in his affirmation submitted with his
cross-motion (see Item 7) on the same date that defendant's attorney received
notification that his dismissal motion had been mailed to the incorrect address,
he also received claimant's motion for a default judgment. Defendant's attorney
promptly and timely responded to the motion for default judgment, and also
re-instituted the motion for dismissal of the claim (which has been denied
Additionally, by letter dated December 14, 1999, this Court advised both the
claimant and defendant's attorney that claimant's motion seeking a default
judgment, as well as defendant's motion for dismissal of the claim, would be
Based on the foregoing, therefore, the Court finds and determines that any
default in answering the claim by the defendant is excusable. Defendant's
efforts to respond to the claim through its dismissal motion, although
ultimately unsuccessful, were reasonable under the circumstances. Claimant's
motion for a default judgement, is therefore denied.
Since claimant's motion requesting a default judgment is denied, defendant's
cross-motion (Cross-Motion No. CM-60943) seeking an order vacating any default
judgment has been rendered moot, and is also denied.
Finally, claimant has also brought a motion (Motion No. M-61077) seeking
permission to amend his claim. Although claimant stated in his supporting
affidavit to this motion (see Item 13) that he had submitted a proposed amended
claim with his motion papers, no such proposed amended claim was submitted with
his motion. Claimant did, however, provide copies of documents which had
already been submitted to the Court in connection with the prior motions herein.
From a review of these documents and claimant's supporting affidavit, it appears
that claimant is essentially seeking permission to re-serve his original claim,
in the event that this Court granted the State's motion to dismiss. It does not
appear to the Court that claimant is attempting to assert any new cause of
action, nor is he seeking any additional relief from what was alleged in his
Since defendant's motion to dismiss this claim has previously been denied
herein, claimant's motion has therefore been rendered moot and is hereby denied.
For the reasons set forth above, therefore, it is
ORDERED, that Motion Nos. M-60795, M-60859, M-61077 and Cross-Motion No.
CM-60943 are all hereby DENIED, and it is further
ORDERED, that defendant is hereby directed to serve and file its answer to this
claim within 40 days from the date of filing of this decision and order.
Defendant is advised that no affirmative defense relating to the manner of
service of the claim may be raised in said answer, since that issue has been