New York State Court of Claims

New York State Court of Claims

ROY v. THE STATE OF NEW YORK, #2000-009-414, Claim No. 101202, Motion Nos. M-60795, M-60859, M-61077, CM-60943


Defendant brought a motion for dismissal of the claim based on improper service; claimant brought a motion for a default judgment and a motion to amend his claim; defendant brought a cross-motion in opposition to the request for a default judgment. The Court found that defendant had waived its defense of improper service, but did not waive its right to answer the claim, and on that basis denied all motions and cross-motion.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-60795, M-60859, M-61077
Cross-motion number(s):
Nicholas V. Midey, Jr.
Claimant's attorney:
Defendant's attorney:
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney General of Counsel.
Third-party defendant's attorney:

Signature date:
June 13, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The Court has before it several motions pertaining to the above captioned claim. For purposes of judicial economy, all of the motions will be considered together herein.

Accordingly, the Court has considered the following papers:
Notice of Motion, Request for Entry of Default Judgment, Affidavit, Motion, Affidavit in Support (Motion No. M-60795). 1,2,3,4,5

Notice of Cross-Motion, Affirmation, with Exhibits (Cross-Motion No. CM-60943). 6,7

Reply, with Exhibits (Cross-Motion No. CM-60943) 8

Notice of Motion, Affirmation, with Exhibits (Motion No. M-60859) 9,10

Response from Claimant, dated and sworn to on 12/8/99, with Exhibits (Motion No. M-60859) 11

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 confinement.

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 above).

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 considered together.

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 original claim.

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 determined herein.

June 13, 2000
Syracuse, New York

Judge of the Court of Claims