New York State Court of Claims

New York State Court of Claims

ALLIEGRO v. THE STATE OF NEW YORK, #2001-014-506, Claim No. 102178, Motion Nos. M-62848, CM-62947


The claimant's motion to strike the Affirmative Defense alleging untimely filing and service is granted; the Defense does not satisfy the requirements of Court of Claims Act §11(c). The defendant's cross motion to dismiss the claim on the ground that it improperly consolidates two separate claims, is denied

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):
S. Michael Nadel
Claimant's attorney:
Dealy & Trachtman, LLPBy: Kathleen P. Ramalho and Alan C. Trachtman
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Hector D. LaSalle, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 14, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 Law.[1]

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 Intention.

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 11, 1998.

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 §11(c).

In order to be raised with particularity a defense must state the factual elements to be proven,[2] 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.[3] 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.

February 14, 2001
New York, New York

Judge of the Court of Claims

[1]The Court has considered the defendant's Reply Memorandum of Law, as requested by the counsel for the defendant, over the objection of the counsel for the claimants.
[2]See, CPLR 3013: "Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense."
[3]Alternatively, the defendant's position can be understood to be that, if only with respect to the issue of timeliness, the proper action would have been service of a single Notice of Intention.