New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2001-005-531, Claim No. 103845, Motion No. M-63877


Defendant's motion for an order striking certain affirmative defenses in the Third-Party Defendant's answer is granted to the extent noted.

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:
Michael P. Stacy,Attorney at Law
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Thomas G. Ramsay, Assistant Attorney General
Third-party defendant's attorney:
Sugarman Law Firm LLPBrian Sutter, Esq.
Signature date:
September 17, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On September 10, 2001, the following papers, number 1 to 8, were read on motion by Defendant for an order striking certain affirmative defenses in the Third-Party Defendant's Answer and such other and further relief as may be just and proper:

1, 2 Notice of Motion, Affirmation and Exhibits Annexed
  1. Opposing Affidavit of Third Party Defendant and Exhibit Annexed
  2. Claimant's Attorney's Reply Affirmation
5, 6, 7, 8 Filed Papers: Claim, Answer, Notice of Impleader and Verified Reply to the Third-Party Claim

Upon the foregoing papers and after hearing Thomas G. Ramsay, Esq., Assistant Attorney General, on behalf of the Defendant and Brian Sutter, Esq., on behalf of the Third-Party Defendant, and Michael P. Stacy, Esq., on behalf of the Claimant, this motion is granted to the extent noted.

In this motion Defendant seeks to strike certain of the Affirmative Defenses raised by the Third-Party Defendant herein. The Third-Party Defendant has withdrawn its Third Affirmative Defense.

Specifically, with respect to the Fourth Affirmative Defense raised by the Third-Party Defendant, which in essence asserts that the Third-Party Defendant timely and properly disclaimed coverage and a defense to the State of New York by letter dated August 20, 1999, the Defendant alleges that said letter was misaddressed and sent to an Albany address (see Exhibit A to the Reply to the Third-Party Claim) and that the Defendant did not receive the same until March 26, 2001. In opposition thereto, the Third-Party Defendant requests the opportunity to pursue discovery with respect to the purported effectiveness of the August 20, 1999, disclaimer letter. I find that discovery is not necessary. The undisputed and unrefuted affirmations of the Defendant's counsel, made under penalty of perjury, establish that no disclaimer notice was ever provided to him despite the August 10, 1999, notice to the Third-Party Defendant by the State of New York demanding the defense and indemnification of the State (Exhibit C to the Notice of Motion).

It is further asserted that the Defendant was not aware of such disclaimer notice until March 26, 2001, when, after an Impleader Notice dated March 22, 2001, Third-Party Defendant responded by relying upon the purported disclaimer notice of August 20, 1999. The Third-Party Defendant has failed to provide any assertion made under oath or even upon information and belief, that such notice was indeed provided to the Defendant before March 2001. Notably, although the letter dated August 20, 1999 (Exhibit A to the Reply to the Third-Party Claim), appears to have been sent by certified mail, return receipt requested, albeit to an address in Albany that was not the address given by Defendant's counsel in his August 10, 1999, original notification letter, no proof of such successful service accompanied the Third-Party Defendant's motion papers.

I find that the Third-Party Defendant was given timely and proper notice by the Defendant of the pending proceedings before me. With respect to that part of the Fourth Affirmative Defense which contends that the State's Notice of Impleader was untimely, it too is rejected. The Defendant has demonstrated, again through an affirmation made under oath and penalty of perjury, and Exhibits B and C appended to its motion, that it provided written notification dated August 10, 1999, to the Third-Party Defendant within some eight days of receiving the Claimant's application for permission to file a late claim on August 2, 1999. Even though the underlying incident took place in June 1998, I find that until the aforementioned late claim application, the Defendant did not, and could not, know that there was a claim of serious injury warranting earlier notice to the Third-Party Defendant.

The Fifth Affirmative Defense, made upon information and belief, alleges that no coverage is afforded under the Third-Party Defendant's policy for any cause of action in the claim herein, by reason of the terms and conditions of the insuring agreement. The Certificate of Insurance herein names the New York State Department of Transportation, and provides on its face protective liability coverage (Exhibit A to the Defendant's moving papers, subsection [d], Policy Number 1072923364) and commercial general liability coverage (Defendant's Exhibit A, subsection [e], Policy Number 1072923378), for the periods from October 28, 1997 to October 28, 1998, encompassing the date of the accident herein on June 25, 1998. The underlying accident, arises from a June 25, 1998, road construction site accident on Route 20 in Genesee County, when Claimant, an employee of the Keeler Construction Co., allegedly sustained injuries while working on a paving project pursuant to Keeler's contract with the New York State Department of Transportation (see my decision and order granting permission to file a late claim).[1] There seems no basis, made under oath or otherwise, supporting the allegation that there is no coverage for this cause of action under the policies in question. Accordingly, that part of the instant motion seeking to strike the Fifth Affirmative Defense is granted.

As the parties acknowledged before me, granting of this motion is tantamount to directing the Third-Party Defendant to appear to defend and indemnify the Defendant. Accordingly, the Defendant's motion is granted to the extent noted and the Third-Party Defendant is given 40 days from service of a file-stamped copy of this order to file an answer to the claim herein (22 NYCRR 206.7[a]), unless it decides, as is its prerogative, to appeal from this order. Claimant's motion to strike certain affirmative defenses contained within the Defendant's answer (Motion No. M-63624), deemed submitted as of August 15, 2001, is adjourned sine die, inasmuch as the answer to be filed by the Third-Party Defendant will supercede the currently-filed answer, perhaps mooting out that motion.

September 17, 2001
Rochester, New York

Judge of the Court of Claims

[1] UID #2001-005-502, Motion No. M-60188. This decision of the New York State Court of Claims (and many others) can be found on our website at