2. Affidavit in Opposition of Nelson Alvarez, pro se, ("Alvarez
3. Reply Affidavit of William D. Lonergan ("Lonergan Reply Affidavit")
4. Reply Affidavit of Nelson Alvarez ("Alvarez Reply Affidavit")
5. Filed Papers: Claim; Answer
This is a dental malpractice claim that arose from treatment Claimant received
on September 21, 1998 at Collins Correctional Facility. Claimant served a
Notice of Intention on Defendant on February 1, 1999 (Lonergan Affidavit,
Exhibit A). A Claim was subsequently filed and served on April 29, 1999
(id., Exhibit B).
In its answer, Defendant raised the following as its fourth affirmative
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. The incident occurred on or about October 1, 1998. The
Notice of Intention to File a Claim was not served until February 1, 1999, more
than ninety (90) days after the action accrued.
Defendant's fifth and sixth affirmative defenses contain, with very little
changes, restatements of only the first sentence quoted above.
Section 11(c) of the Court of Claims Act requires that when the State wishes to
assert a defense on Claimant's failure to comply with either the time
requirements of Section 10 or the manner of service requirement of Section
11(a), it must do so in its answer or in a pre-answer motion, and the defense
must be stated "with particularity." In order to satisfy this standard, the
statement must 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). It
is generally accepted that the statement should state the factual elements to be
proven, not legal conclusions (Alliegro v State of New York
, Ct Cl, Feb.
14, 2001 [Claim No. 102178, Motion Nos. M-62848, CM-62947], Nadel, J.[MacLaw No.
and that it should reference
both the relevant statute and the requirement that should have been met
, Smith v State of New York
, Ct Cl, July 20, 1993
[Claim No. 85799, Motion No. M-48029], Benza, J.).
For example, it has been held that an affirmative defense referring to the time
limitations contained in Section 10(3), which is applicable to negligence
claims, was not sufficient to preserve a defense against a breach of contract
cause of action, to which the time limitation in Section 10(4) would apply
(Gordon v State of New York
, Ct Cl, Dec. 15, 2000 [Claim No. 102689,
Motion Nos. M-62172, CM-62487], Collins, J. [MacLaw No. 2000-015-110]). A very
generally worded defense that does not identify, among other things, the
statutory authority for the requirement violated does not meet the required
standard (Keyser v State of New York
, Ct Cl, Aug. 29, 2000 [Claim No.
101818, Motion Nos. M-61869, CM-61945], Lebous, J. [MacLaw No.
nor does a defense that states
the claim was untimely served but does not indicate that it should have been
served within 90 days of accrual (Tirado v State of New York
, Ct Cl, Aug.
7, 2000 [Claim No. 93710], Mignano, J. [2000-029-002]). When determining
whether a statement is sufficiently particular, it is appropriate to consider a
claimant's status as a pro se
litigant (Ketchmore v State of New
, Ct Cl, Oct. 19, 1994 [Claim No. 85676, Motion No. M-50343], Mega,
The first sentence of the defense stated above (and consequently Defendant's
fifth and sixth defenses) is not, on its own, sufficient to preserve either the
defense of untimeliness or the defense of improper service. Together with the
second sentence, however, it would have been possible for the Claimant to
identify the appropriate statute, which in this case is Section 10(3), and to
determine for himself whether the defense was valid. While the statement
contained in Defendant's answer could have been stated with far greater clarity,
the defense was preserved.
February 1, 1999 is, without dispute, more than 90 days after the claim's
accrual, and thus the Notice of Intention was untimely and did not preserve
Claimant's right to file a claim at some later
Failure to comply with the time and
manner of service requirements contained in Sections 10 and 11 of the Court of
Claims Act 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). Consequently,
Defendant's motion is granted, and Claim No. 100270 is dismissed.