New York State Court of Claims

New York State Court of Claims

McCRAY v. THE STATE OF NEW YORK, #2001-013-016, Claim No. 97930, Motion No. M-63696


Defendant's motion to dismiss the claim is denied because, although it appears that the Notice of Intention was both untimely and improperly served, Defendant failed to preserve its defenses with sufficient accuracy and particularity to satisfy the requirement of Court of Claims Act §11(c).

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:
Attorney General of the State of New York
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 19, 2001

Official citation:

Appellate results:
See also (multicaptioned case)


On July 18, 2001, the following papers were read on Defendant's motion for an order of dismissal:
1. Notice of Motion and Supporting Affidavit of Wendy E. Morcio, Esq. ("Morcio Affidavit")

2. Affidavit in Opposition – none received

3. Filed papers: Claim; Answer

Claimant, who is appearing pro se,
seeks to recover money damages for injuries that he suffered when, it is alleged, a dentist at Wende Correctional Facility removed the wrong tooth. The incident occurred on November 17, 1997.

Claimant served a Notice of Intention in either January or February 1998 (see discussion of the exact date below), and followed that by filing and serving a claim in March 1998. In its Answer, Defendant alleged, as its fourth affirmative defense, the following:

Upon information and belief, this Court lacks subject matter jurisdiction over the claim herein because of the Claimant's failure to timely and properly serve a claim upon the Attorney General, pursuant to Sections 9, 10 and 11 of the Court of Claims Act.

This statement does not satisfy the requirement of Section 11(c) of the Court of Claims Act that any affirmative defense based on untimeliness or improper service must be raised "with particularity," because it fails to provide "adequate and clear notice to any reasonable person that a defect is claimed to exist and that it may at some point be used as the basis of a motion to dismiss" (Sinacore v State of New York, 176 Misc 2d 1, 6; see also Fowles v State of New York, 152 Misc 2d 837). In particular, the statement is made "upon information and belief,"[1] and it does not clearly identify the relevant statute or the nature of the requirement that should have been met (see, Smith v State of New York, Ct Cl, July 20, 1993 [Motion No. M-48029], Benza, J.; Kanaval v State of New York, Ct Cl, July 20, 1993 [Claim No. 86053, Motion No. M-47990], Benza, J.). In my view, when asserting the defense of untimeliness, the Attorneys General should and must identify both the specific time period within which the Claimant was to have complied and the statutory source for such requirement. In this instance, because the claim is one for personal injury allegedly caused by ordinary negligence, that would be the requirement that either a claim or a notice of intention be served within ninety days after the claim's accrual (Court of Claims Act §10[3]). Especially when the Claimant is a layperson appearing pro se, there is every reason for Defendant to be precise in giving notice about a jurisdictional defect that, unless corrected, could be fatal to the claim (Keyser v State of New York, Ct Cl, Aug. 29, 2000 [Claim No. 101818, Motion Nos. M-61869, CM-61945], Lebous, J.[ MacLaw No. 2000-019-531][2]).

In a second effort to raise the same defense plus the defense of improper service, Defendant alleged, as its fifth affirmative defense, the following:

Upon information and belief, this Court lacks jurisdiction because of Claimant's failure to timely and properly serve a Claim and commence an action as required by Sections 9, 10 and 11 of the Court of Claims Act. Claimant failed to timely serve a Notice of Intention to File Claim or a Claim within ninety (90) days of the alleged incident of November 17, 1997. The Notice of Intention to File Claims was served on January 21, 1998[3] and the Claim was served on March 9, 1998, more than ninety (90) days after the alleged incident. Court of Claims Act, Section 11, requires that service on the State of New York be made personally on the Attorney General or by Certified Mail, Return Receipt Requested, to the Attorney General. Claimant served the Claim by Regular Mail.

In my opinion, these statements are vague, circuitous and confusing. They again are made on "information and belief," whatever that may mean in this context (see, n. 1); they mingle two different defenses -- untimeliness and improper service -- in a single affirmative defense; and they fail to precisely identify the statutory requirements -- those contained in Sections 10(3) and 11(a) -- that, it is alleged, Claimant did not meet. Nevertheless, the statements I believe barely contain sufficient factual information to allow Claimant to identify the specific statutes and thus can be considered as providing adequate notice to Claimant. If he studied the statements together with the text of the designated sections of the Court of Claims Act, and reviewed information he possessed about when and how he served and filed the jurisdictional documents, Claimant would have been in a position to determine for himself the truth of Defendant's allegations and to decide whether he should take some steps to remedy any defect. Therefore, I find that the fifth affirmative defense -- on its face -- does satisfy at a minimal level the "particularity" requirement of Section 11(c).

Defendant now seeks an order dismissing the claim on the ground that the Court lacks jurisdiction to hear the case. There are, however, significant differences between the facts, and legal defenses, set forth in the Answer and those on which Defendant bases its argument in support of the motion.

Defendant does not appear to base its motion on any argument that the Notice of Intention was untimely (see, Morcio Affidavit, ¶¶ 6, 7). This is understandable, because the question of when the Notice of Intention was served and the issue of whether that defense was preserved is, to say the least, confused. The postmark on the envelope that contained Claimant's Notice of Intention (Morcio Affidavit, Exhibit A, last page) indicates that it was mailed on February 15, 1998, but the Department of Law receipt stamp on that same envelope indicates that it was received on January 21, 1998, almost a month earlier. To further confuse matters, the Department of Law receipt stamp on the face of the Notice of Intention itself (id, first page) was covered up before it was photocopied, and there is a second receipt stamp bearing an undecipherable date in March 1998, which appears to be the date that it was received at the Buffalo Regional Office. The most logical explanation is that the envelope was received by the Attorney General on February 21, 1998, six days after it was mailed, but that the Department of Law date stamp in use at that time was accidentally "turned" so that it was one month off. Sometime later, the incorrect January date that must have appeared on the face of the Notice of Intention was covered over, but it was not replaced by the correct date of receipt and no one thought to correct the date that was stamped on the envelope.

If this explanation is correct, the Notice of Intention was in fact untimely, as the 90th day after November 17, 1997 is February 15, 1998 -- the date it was mailed. Service, of course, is measured by the date of receipt. not the date of mailing (Court of Claims Act §11[a]). I question, however, whether Defendant preserved any defense based on this document's untimeliness, because in the relevant portion of Defendant's fifth affirmative defense, quoted above, it is alleged that the document was served on January -- not February -- 21, 1998. An affirmative defense, even if it was raised "with particularity," cannot be effective when the particulars given are incorrect and where the incorrect information would reasonably lull Claimant into a false sense of security. Here, the asserted defense does not give adequate and clear notice of the particulars of the defense (i.e., that the State was prepared to prove that the Notice of Intention was received after February 15, 1998) and, in fact, would have given Claimant false assurance that, at least according to Defendant's records, the service was timely. While inaccuracies in a Defendant's statements may not always result in waiver of one of these jurisdictional defenses (see, Quinones v State of New York, Ct Cl, Aug. 4, 2000 [Claim No. 98079, Motion No. M-61608] Fitzpatrick, J. [Maclaw No. 2000-018-031][4]), I hold that a defense based on untimely service of the Notice of Intention was waived in this instance.

Apparently assuming, therefore, that the Notice of Intention was timely (or, at least, that it was prudent not to raise the issue of its timeliness), Defendant has chosen to seek dismissal on the ground that the Notice of Intention was improperly served. Without a timely, properly served Notice of Intention to secure Claimant's right to institute his action at a later date, the claim, which was served on March 9, 1998, would without question be untimely, despite the fact that, as Defendant acknowledges (Morcio Affidavit, ¶ 7), that document was properly served by certified mail, return receipt requested.

In support of the motion, Defendant has submitted the photocopy of the envelope in which the Notice of Intention was received. While the postmark and receipt stamp dates on the envelope may cause confusion, it clearly shows that only regular mail postage was used and, consequently, establishes that the Notice of Intention was not served in accordance with the requirements of Court of Claims Act §11(a).

There is a question, however, as to whether the State properly preserved its right to object to improper service of the Notice of Intention. I hold that it did not. The only statement alleging improper service that is contained in the Answer's fifth affirmative defense was the following: "Claimant served the Claim by Regular Mail." Claimant, who would have been in possession of the certified receipt (green card) showing proper service of that document, could therefore assume that that defense had no merit and would have had no reason to further consider the issue of service. The statement cannot, by any stretch, be read as raising, with particularity or otherwise, the defense that a different document – the Notice of Intention – was improperly served.

I recognize that the net effect of my decision will be to preserve as viable a claim that was not, in fact, commenced in accordance with the statute's requirements regarding timeliness and manner of service. On the other hand, claimants are not the only ones required to strictly comply with the jurisdictional requirements of the Court of Claims Act, and Section 11(c) of that Act provides that unless the Defendant raises either of these objections "with particularity" in either the answer or a pre-answer motion, the defense is waived and "if so waived the court shall not dismiss the claim for such failure." Thus, even untimely, improperly served claims may survive if Defendant does not follow this statutory direction (see, Firth v State of New York, 184 Misc 2d 105; Adebambo v State of New York, 181 Misc 2d 181, Knight v State of New York, 177 Misc 2d 181; Sinacore v State of New York, 176 Misc 2d 1, supra). While this ruling may appear hyper technical to some, I note again that it is a relatively simple matter for Defendant to avoid the problems created here by raising these quite simple defenses in a direct, accurate, and unambiguous fashion.

Defendant's motion is denied.

September 19, 2001
Rochester, New York

Judge of the Court of Claims

  1. [1]An allegation in a pleading may be made "on information and belief" if the party or the person making the verified statement has no personal knowledge of the relevant facts (84 NY Jur 2d, Pleadings § 35). It is difficult to imagine how a defense based on either untimeliness or improper service could be alleged "with particularity" unless Defendant has knowledge of, and recites, the relevant facts. (On the other hand, perhaps such pleading was appropriate here, because, as indicated in the discussion of the Answer's fifth affirmative defense below, that unimaginable situation may have actually occurred.)
  2. [2]This decision may be found on the Court of Claims website at
  3. [3]January 21, 1998 was not, of course, more than ninety days after November 17, 1997. The possible genesis, and effect, of this allegation is discussed below.
  4. [4]This decision may be found on the Court of Claims website at