New York State Court of Claims

New York State Court of Claims

ALVAREZ v. THE STATE OF NEW YORK, #2001-013-020, Claim No. 100270, Motion No. M-63672


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: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October , 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On September 19, 2001, the following papers were read on Defendant's motion for an order of dismissal:
1. Notice of Motion and Supporting Affidavit of William D. Lonergan, Esq. ("Lonergan Affidavit"), with Annexed Exhibits

2. Affidavit in Opposition of Nelson Alvarez, pro se, ("Alvarez Affidavit")

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 defense:

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. 2001-014-506])[1] and that it should reference both the relevant statute and the requirement that should have been met (see, 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. 2000-019-531]),[2] 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 York, Ct Cl, Oct. 19, 1994 [Claim No. 85676, Motion No. M-50343], Mega, J.).

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 time.[3] 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.

October , 2001
Rochester, New York

Judge of the Court of Claims

  1. [1]This decision, and other MacLaw decisions, may be found on the Court of Claims website at
  2. [2] The defense held to be insufficient stated as follows: "That 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."
  3. [3]Claimant argues that the defense motion is "invalid" because in paragraphs 4 and 8 of the Lonergan Affidavit the service date of the Notice of Intention is given as February 1, 1998, rather than 1999. This typographical error was harmless, however, because the correct date appears both in the State's answer and in the receipt stamp on the face of the document itself (Lonergan Affidavit, Exhibit A). Claimant, who certainly knew when he mailed the Notice of Intention, could not have been misled.