New York State Court of Claims

New York State Court of Claims

KEYSER v. THE STATE OF NEW YORK, #2000-019-531, Claim No. 101818, Motion Nos. M-61869, CM-61945


State's motion to dismiss denied since State waived jurisdictional defense by failing to raise issue, with particularity, in its Answer. Claimant's cross-motion for permission to late file denied as moot.

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):
Cross-motion number(s):
Claimant's attorney:
MERKEL AND MERKELBY: David A. Merkel, Esq., of counsel
Defendant's attorney:
BY: Earl F. Gialanella, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
August 29, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion to dismiss filed by the State of New York (hereinafter "State") pursuant to CPLR 3211. Claimant opposes the dismissal motion and, in the alternative, cross-moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6).

The Court has considered the following papers in connection with these motions:
  1. Notice of Claim, filed January 21, 2000.
  2. Verified Answer, filed December 16, 1999.
  3. Notice of Motion No. M-61869, dated June 14, 2000 and filed June 16, 2000.
  4. Affirmation of Earl F. Gialanella, AAG, in support of motion, dated June 14, 2000, with attached exhibits.
  5. Cross-Notice of Motion No. CM-61945, dated June 29, 2000 and filed July 3, 2000.
  6. Affirmation of David A. Merkel, Esq., in support of cross-motion and in opposition to motion, dated June 29, 2000, with attached exhibits.
  7. Reply Affirmation of Earl F. Gialanella, AAG, in support of motion and in opposition to cross-motion, dated July 10, 2000 and filed July 17, 2000, with attached exhibit.
This claim arose on August 15, 1999 when Claimant "[w]as walking on a trail in Keuka State Park when he lost his balance and fell [and] landed on a rod which was stuck in the ground and bent down." (Notice of Claim, ¶ 3). The procedural sequence of events is undisputed, namely that a "Notice of Claim"[1] was served on the Attorney General's office on November 12, 1999; the State's Verified Answer was served on December 13, 1999 and filed on December 16, 1999; and the Notice of Claim was filed in the Office of the Clerk on January 21, 2000.

The State's sole basis for dismissal is Claimant's failure to file this Claim with the Office of the Clerk within 90 days from accrual. (CCA 10 [3]). It is a fundamental principle of practice in the Court of Claims that the filing and service requirements are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). However, any defense premised upon CCA 10 or 11 is waived unless raised, with particularity, either by way of a motion to dismiss before service of the responsive pleading or in the responsive pleading. (CCA 11 [c]). Here, the State's first affirmative defense states "[t]hat this Court lacks subject matter jurisdiction of the claim as it was not filed with the Clerk of the Court of Claims pursuant to Section 11(a) of the Court of Claims Act." (State's Verified Answer, ¶ 5). It is well-settled that such a defense should, at a minimum, relate "(1) that the claim or notice of intention was not filed or served in a timely fashion; (2) that the claim should have been filed at some earlier time; and (3) the statutory authority of the requirement that was allegedly violated". (Sinacore v State of New York, 176 Misc 2d 1, 9; emphasis added). In this Court's view, the State's first affirmative defense is lacking portions of both the first and second elements cited above, namely an indication that this Claim was not timely filed and that it should have been filed at an earlier time. Such specificity in relation to the ninety day statutory period is particularly important in cases involving, as here, a pro se litigant.[2] (Dargan v State of New York, Ct Cl., October 16, 1998, Lane, J., Claim No. 85719). As such, this Court finds the State failed to raise its defense with particularity. Consequently, the State's motion to dismiss will be denied.

Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-61869, is DENIED, and

IT IS FURTHER, ORDERED, that Claimant's Cross-motion, CM-61945 is DENIED as moot.

August 29, 2000
Binghamton, New York

Judge of the Court of Claims

There is no document in the Court of Claims properly entitled a "Notice of Claim"; rather there is a notice of intention to file a claim and the claim itself. In any event, this "Notice of Claim" is the equivalent of a claim.
Claimant was appearing pro se when he served his "Notice of Claim". The State's affidavit of service of its Verified Answer shows service upon Claimant in his pro se capacity.