New York State Court of Claims

New York State Court of Claims

HOLLOWAY v. THE STATE OF NEW YORK, #2000-028-101517, Claim No. 97863, Motion No. M-62234


Defendant failed to assert the affirmative defense of untimeliness with sufficient particularity to meet the requirement of section 11(c) of the Court of Claims Act. The defense of improper service was sufficient to preserve that defense, however, and that branch of the motion to dismiss is granted.

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:
Defendant's attorney:
BY: Paul F. Cagino, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 16, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on defendant's motion for an order of dismissal.

• abNotice of Motion and Supporting Affirmation of Paul F. Cagino, Esq., AAG, filed August 22, 2000, with annexed Exhibit A ("Cagino affirmation")

• abAffidavit in Opposition of Deshon Holloway, pro se, filed September 1, 2000 ("Holloway affidavit")

Filed papers:

• abClaim, filed February 25, 1998

• abAnswer, filed March 9, 1998

The claim in this action alleges that claimant Deshon Holloway was assaulted at Greene Correctional Facility on October 28, 1997; that he was assaulted by three correction officers later that same day; and that he was subjected to periodic assaults and other abuses during the period that he was housed in the facility's Special Housing Unit. The claim does not indicate how long this alleged pattern of conduct continued, but one incident is said to have occurred on November 4, 1997 (claim, ¶ 3, p 2). With respect to the timeliness of the action, claimant recites that the claim was filed within three years pursuant to CPLR 214 (id., ¶ 4).

In its answer, the State asserted the following affirmative defenses:

First defense:

That this Court lacks jurisdiction as the claim is untimely in that neither the claim or a notice of intention was served within ninety (90) days after the accrual of the claim.

Second defense:

That this Court lacks personal jurisdiction as the claim was not served in compliance with Section 11(a) of the Court of Claims Act in that the claim was delivered by ordinary mail instead of served personally or by certified mail, return receipt requested.

The State now moves for an order dismissing the claim on either or both of these grounds. A threshold question is whether the affirmative defenses were set forth with sufficient particularity to preserve the defenses.

Section 11(c) of the Court of Claims Act requires that when the defendant wishes to assert that a claim is untimely or has been improperly served, it must preserve either of those defenses by setting it forth "with particularity" in either a pre-answer motion or the answer.[1] The

Legislature's purpose in adding this provision was to put a stop to certain "gamesmanship" that had taken unfair advantage of claimants in previous years, and to assure that claimants, many of whom were not familiar with this Court's procedures and the unique jurisdictional nature of timeliness and service requirements, were informed of the material elements of the defense (Sinacore v State of New York, 176 Misc 2d 1, 5-6; Fowles v State of New York, 152 Misc 2d 837, 840). The pleading requirement is satisfied by a statement that "gives notice of the transaction or occurrence intended to be proven and the material elements of it" (Fowles v State of New York, 152 Misc 2d 837, 840 [citation omitted]). When considering whether a statement is sufficiently particular, it is appropriate to consider a claimant's status as an incarcerated pro se litigant in determining whether the language fulfilled the statutory mandate (Ketchmore v State of New York, Claim No. 85676, Motion No. M-50343, Mega, J., filed Oct. 19, 1994).

In raising a defense based on improper service, it has been held that the statement should refer to (1) the manner of service that was used, (2) the manner of service that should have been used, and (3) the statutory authority for such a requirement. It takes no more than one simple sentence to convey this information (see Garcia v State of New York, Claim No. 84965, Motion No. M-48313, filed Sept. 24, 1993, Benza, J., opn at 4). A statement that a claim or notice of intention "was not served in accordance with Court of Claims Act § 11" is not sufficiently particular (Saldana v State of New York, Claim No. 84560-A, Motion No. M-48337, filed Feb. 24, 1994, Benza, J.).

The same level of clarity should be used in statements setting forth the defense of untimeliness. They should include (1) reference to the time period within which the filing (and/or service) should have occurred and (2) the statutory authority for such requirement. (see, Smith v State of New York, Claim No. 85799, Motion No. M-48029, filed July 20, 1993, Benza, J.; Kanaval v State of New York, Claim No. 86053, Motion No. M-47990, filed July 20, 1993, Benza, J.). Requiring this level of detail should work no hardship on the defense attorneys who appear in this Court, as they are thoroughly familiar with the requirements of the Court of Claims Act.

Applying these standards to the statements set forth in defendant's answer, it appears that the first affirmative defense (untimeliness) has not been preserved. The statement contains no reference to the statutory authority for requiring service of a claim or a notice of intention within ninety days after the claim accrued. In this case, particularly, it is evident from the pleading that claimant considered CPLR 214 (setting a three year statute of limitations for, inter alia, claims alleging personal injury) to control the question of timeliness. Telling him that he should have taken action within ninety days, rather than three years, without designating the source of that requirement does not satisfy the statutory requirement for particularity. The allegation with respect to the defense of improper service, however, is sufficient to preserve that defense.

In support of that portion of the motion, counsel for defendant has submitted photocopies of the front and back of the envelope in which the claim was mailed to the Office of the Attorney General, and these copies show that only regular mail postage was used. A claimant's failure to serve the Attorney General personally or by certified mail, return receipt requested, is a fatal jurisdictional defect and deprives this court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724; Bogel v State of New York, 175 AD2d 493).

For the reasons set forth hereinabove, that branch of defendant's motion to dismiss the claim on the ground that it is untimely is denied, while that branch of the motion seeking to dismiss the claim on the ground of improper service is granted.

October 16, 2000
Albany, New York

Judge of the Court of Claims

[1] The full text of section 11(c) is as follows: "Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, or (ii) the manner of service requirements set forth in subdivision a of this section is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure."