The following papers were read on the claimants' motion to strike the Third and
Fourth Affirmative Defenses in the Answer, and to strike the Answer, and on the
defendant's cross-motion to dismiss the claim: Notice of Motion, Affirmation in
Support and Exhibits annexed; Notice of Cross-Motion, Affirmation in Support and
in Opposition to claimants' motion and Exhibits annexed, Memorandum of Law;
Reply Affirmation; Reply Memorandum of
Each of the claimants alleges that the defendant negligently hired and
supervised a particular employee who engaged in a course of unlawful
discrimination against each of them, resulting in a hostile work environment
which caused claimant Alliegro to resign her employment, and which resulted in
claimant Moskowitz being terminated from his employment. Although the two
claimants served and filed a single claim, each separately served a Notice of
In its Third Affirmative Defense, the defendant asserts that the "consolidation
of the claims of the two claimants hereunder is not authorized by statute, order
or stipulation." It is the claimants' position that the consolidation (or
joinder) of their claims is authorized by CPLR 1002(a), since the claims arise
out of the same "series of transactions or occurrences" and involve common
questions of law and fact.
Whether or not the claims of these two individuals are properly consolidated
(or joined) in one claim cannot be determined upon the record before the Court,
which, with respect to this matter, consists principally of the argument of
counsel. Thus, the defendant's Third Affirmative Defense cannot be said to be
without merit, and the claimants' motion to strike it must be denied.
But even if the claims are not properly consolidated (or joined), the defendant
has offered no legal authority which suggests that such is a basis for
dismissing the claim. Court of Claims Act §9(5) provides no support for
the defendant's position. It merely confers upon the Court the jurisdiction to
consolidate claims, or to try claims together. It cannot be understood to
obviate the clear language of the provision of CPLR 1003 which states:
"Misjoinder of parties is not a ground for dismissal of an action."
If the claims are, in fact improperly consolidated (or joined), at whatever
time during discovery the record presented is sufficient to support a motion to
sever the claims, such would appear to be the appropriate procedure to pursue.
See, CPLR 1003. Accordingly, the defendant's cross-motion to dismiss the
claim on that ground is denied.
The claimants seek to strike the defendant's Fourth Affirmative Defense, and
the defendant cross-moves on that affirmative defense to dismiss the claim.
The Fourth Affirmative Defense asserts that the Court is without jurisdiction
"due to claimant's failure to timely serve the notice of intention and the claim
upon the Attorney General's office and to timely file the claim with the Court
of Claims, in accordance with Court of Claims Act Sections 10 and 11, which
requires service of the notice of intention, or service and filing of the claim,
within ninety days of the accrual date." It is not disputed for purposes of
this motion and cross-motion that the claims accrued no earlier than May 13,
1998, and that the separate Notices of Intention were properly served on August
While the time limitations of the Court of Claims Act are jurisdictional
(Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607,
Mallory v State of New York, 196 AD2d 925), any objection or defense
based upon the failure to comply with those limitations "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." Court of Claims Act
In order to be raised with particularity a defense must state the factual
elements to be proven,
not legal conclusions.
See, Sinacore v State of New York
, 176 Misc 2d 1. In this case, it is
the defendant's position that what was done incorrectly was the service and
filing of a single claim, although two separate notices of intention were
served. The correct course of action, according to the defendant, would have
been to serve and file two separate claims.
But the Fourth Affirmative Defense does not specify "the action that would have
been proper" (Sinacore v State of New York, supra
, at 9), namely, service
and filing of two separate claims. Cf.,
Villa v State of New York
, 228 AD2d 930, where the statement "since no
notice of intention was served on the Attorney-General within 90 days of
accrual" was held to be sufficient. As such, the defense is not stated with
the particularity required by §11(c), as a result of which the defense of
timeliness has been waived, so that the defendant's motion to dismiss the claim
on that ground must be denied.
It is also apparent that the Fourth Affirmative Defense is without merit, and
the claimant's motion to strike it should be granted. CPLR 3211(b). In the
first place, the claim was served on March 24, 2000 and filed on March 27, 2000,
well within the period each claimant had to do so, as a consequence of having
properly served a Notice of Intention. Court of Claims Act §10(3). Also,
the defense alleges the "claimant's failure to timely serve the notice of
intention" although it is not disputed that Notices of Intention were in fact
served within 90 days.
While the service by the defendant of a separate Combined Demand for each
claimant, with the caption including only the name of one claimant (see,
Exhibits 10 and 11 to claimants' submission), was improper, it does not warrant
the imposition of the relief sought by the claimants pursuant to CPLR 3126. The
defendant is directed to serve a single set of demands on the claimants, with
the proper caption, within 30 days of the date of the filing of this Order. The
defendant is also directed to respond to the claimants' discovery notices within
30 days of the date of the filing of this Order.
In accordance with the foregoing, the claimant's motion is granted solely to
the extent that the Fourth Affirmative Defense in the defendant's Answer is
stricken, and the defendant is directed to serve a single set of demands on the
claimants, with the proper caption, and to respond to the claimants' discovery
notices, within 30 days of the date of the filing of this Order; it is in all
other respects denied. The defendant's cross-motion is denied.