New York State Court of Claims

New York State Court of Claims

GOUDIE v. THE STATE OF NEW YORK, #2001-029-073, Claim No. 97194, Motion Nos. M-63375, CM-63422


Claim untimely served and filed. Defense properly raised an answer; claimant argues that the State by agreeing to the Preliminary Conference Order waived this defense. Court grants State's motion to dismiss finding that the issuance of a PCO does not affirmatively establish that the claim was timely and properly served.

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:
Larkin, Axelrod, Trachte & Tetenbaum, LLPBy: James Alexander Burke, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Richard Lombardo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 10, 2001
White Plains

Official citation:

Appellate results:
Affirmed - 2d Dept.
See also (multicaptioned case)


The State moves to dismiss[1] based upon claimant's failure to timely serve and file the claim in accordance with Court of Claims Act § 10 and § 11. Claimant cross-moves for an order: (1) denying the motion, (2) holding that the State is equitably estopped from asserting the time limitations set forth in Court of Claims Act § 10 (6) and (3) granting claimant permission to file a late claim pursuant to Court of Claims Act § 10 (6).

The claim asserts that claimant was injured in an automobile accident on July 19, 1997 at the intersection of State Route 82 and Dutchess County Route 89 at about 9:30 p.m. as a result of the State's negligence in failing to have a stop sign at the intersection.

Court of Claims Act § 10 (3) requires that claimant file and serve a claim[2] within 90 days from the date of accrual. Section 11 (a) of the Court of Claims Act requires that the Attorney General be served either personally or by certified mail, return receipt requested, within this 90 day period. In this case, Claimant filed a claim with the Clerk of the Court on October 20, 1997. The Attorney General received the claim by certified mail, return receipt requested on that same date (see, Exh. A attached to the motion). This date is critical and uncontroverted.

It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 10 (3) gives rise to a jurisdictional defect (see, Finnerty v New York State Thruway Auth., 75 NY2d 721, 723; Dreger v New York State Thruway Auth., 177 AD2d 762, 763, affd 81 NY2d 721; Suarez v State of New York, 193 AD2d 1037, 1038).

However, pursuant to Court of Claims Act § 11(c) this defect must be raised by affirmative defense (either by motion to dismiss prior to service of the responsive pleadings or in the responsive pleading itself) and is waived unless raised with particularity (see, Knight v State of New York, 177 Misc 2d 181, 183). Thus, the first issue is whether the defendant has waived this defense by failure to plead it appropriately.

In its answer, served on November 24, 1997, defendant asserted, as its third affirmative defense that:

"The Court lacks jurisdiction over the claim due to claimant's failure to timely serve the notice of intention and the claim upon the Attorney General's Office, in accordance with Court of Claims Act Sections 10 and 11, which requires [sic] service and filing of the notice of intention or claim within ninety days of the accrual date."

The quoted language, raised in the appropriate pleading, states the nature of the defense, the statute(s) relied upon and sets forth the required time period and claimed defect. We find that the defendant has raised the defense with the requisite particularity to satisfy Court of Claims Act § 11 (c) (Villa v State of New York, 228 AD2d 930). Thus, the defense is available to the defendant upon establishment of proper facts.

In this regard, the sole material (and undisputed) facts are that the claim accrued on July 19, 1997 and that the claim was received by the Attorney General on October 20, 1997 - 93 days after the claim accrued.[3] Thus, the claim was not timely served in accordance with Court of Claims Act § 10 (3).

It is long settled that Court of Claims Act § 10 is more than a statute of limitations, it is a jurisdictional prerequisite to maintaining an action in this Court (Antoine v State of New York, 103 Misc 2d 664). As stated, failure to comply with these statutory filing requirements constitutes a fatal jurisdictional defect requiring dismissal (see, Buckles v State of New York, 221 NY 418; Byrne v State of New York, 104 AD2d 782).

In opposition to the State's motion, claimant's counsel relies upon a Preliminary Conference Order (hereinafter PCO) signed by Judge Andrew P. O'Rourke, dated June 8, 1998. Specifically, claimant relies upon one phrase which reads: "JURISDICTION is established pursuant to Sections 10 & 11, Court of Claims Act" (see Exhs. A and B attached to cross-motion). As is the normal practice in this Court, the PCO is also executed by counsel for both parties. Claimant asserts that, by virtue of the above-quoted phrase, the State's consent to the PCO should be deemed a withdrawal of its jurisdictional defense or a "fatal dereliction of its obligation to assert that defense with particularity" (Burke affirmation Para. 6). The Court credits counsel for his ingenuity in crafting this argument, which is credible at first blush and out of context. However, a review of the procedures which led to the issuance of the PCO by Judge O'Rourke, as well as the full PCO itself, belies claimant's spirited, if misguided assertions.

By letter from the Court dated May 7, 1998 (Exh. D attached to Lombardo affirmation in opposition to cross-motion), claimant's counsel was provided with a blank PCO and advised that, in lieu of appearing at a preliminary conference, counsel could prepare the order after consultation with defense counsel. This procedure allows counsel to disclose initial information to the Court and to deal with mundane scheduling details without the requirement for appearance.

The State has submitted an affidavit from Assistant Attorney General Cascio, who conferred with claimant's counsel regarding the schedule set forth in the PCO (Exh. E attached to Lombardo affirmation in opposition to cross-motion). Mr. Cascio affirms that there was never a discussion with claimant's counsel regarding waiver or withdrawal of the State's third affirmative defense nor was it his intent to withdraw or waive it (Exh. E, Cascio affidavit, Paras. 4 and 5). Claimant points to no extrinsic evidence which would contradict Mr. Cascio or demonstrate such intent on the part of the State.

Thus, the issue becomes the effect of the phrase "JURISDICTION is established pursuant to Sections 10 & 11, Court of Claims Act". A plenary review of the entire order entered by Judge O'Rourke, rather than the narrow review urged by claimant, indicates that the subject phrase is a topic heading rather than a decretal finding by the Court.

Like all PCOs issued by this Court over the last several years, the PCO dated June 8, 1998 is formatted with various groups of blank spaces which are preceded by topic headings, including "BILL OF PARTICULARS", "HOSPITAL RECORDS", "PSYCHIATRIC RECORDS OF CLAIMANT", "PSYCHIATRIC RECORDS OF ASSAILANT PER COURT ORDER", "EXAMINATION BEFORE TRIAL", "PHYSICAL EXAM" and "DISCOVERY AND INSPECTION". All of the topic headings are followed by questions relating to the topic and the scheduling of matters therein and include items which must be filled in by the parties.

This is also true for the heading "JURISDICTION is established...".[4] If the Court were to accept claimant's position that this is a dispositive finding of jurisdiction by the Court, the questions underneath the statement would be rendered meaningless surplusage. To the contrary, the questions, including date of occurrence, date the claim was received by the Court and date the claim was received by the Attorney General, all relate to timely commencement of the action pursuant to § 10 and § 11 of the Court of Claims Act and lead the Court to find that the phrase in question is clearly a topic heading calling for the pertinent facts necessary to establish jurisdiction rather than a finding that it has been established.

Acceptance of claimant's position would require this Court to look at one phrase in a contextual vacuum without considering the document as a whole. This would be contrary to the general rules regarding interpretation of documents (see, 22 NY Jur 2d, Contracts § 252; McKinney's Cons Laws of NY, Book 1 Statutes, § 91) as well as any semblance of judicial common sense. The Court declines to adopt this artificially restricted review of the

Preliminary Conference Order.

Turning now to claimant's cross-motion, claimant asserts that the State should be equitably estopped from asserting that her motion for permission pursuant to § 10 (6) of the Court of Claims Act is barred by the statute of limitations. This argument is extremely problematic for claimant on various grounds, including: (1) proof of actual reliance, (2) the reasonableness of that reliance if proven, and (3) the equal access of the parties to counsel.

In addition, the courts have historically refused to enforce estoppel against the State in the absence of exigent circumstances (Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30; Calco v State of New York, 165 AD2d 117). I find no such exigencies here and no basis whatsoever for the equitable relief requested in the cross-motion.[5]

Claimant's counsel was aware of the assertion of the affirmative defense when the answer was served on November 24, 1997, almost 3½ years ago. Claimant's counsel could have requested a bill of particulars from the State regarding the affirmative defense(s). Counsel could have moved to dismiss the affirmative defenses. This Court routinely receives such motions to dismiss affirmative defenses.

The Court also disagrees with counsel's assertion that the State affirmatively misrepresented to the Court that it deemed jurisdiction to be established by executing the PCO (Burke affirmation Para. 21). A finding of such willful conduct is simply not justified upon this record. Initially, it is noted that the blank PCO form came from this Court, not the defendant. Further, each category seeks information rather than issuing decrees. In fact, the particulars of the affirmative defense are stated on the face of the PCO. It makes no sense to believe that Judge O'Rourke would make an affirmative finding which was directly contradictory to the information contained in the same section of the PCO. If either counsel felt the PCO was unclear or ambiguous, the opportunity to request clarification existed as of June 8, 1998. The fact that the respective counsel may have each unilaterally given different effect to the language of the PCO dated June 8, 1998 does not impute any affirmative conduct to the other.

This Court has often considered methods of requiring that the State be more diligent in acting upon jurisdictional defenses. However regardless of the Court's preferences, the tactical decisions of counsel concerning the timing of a motion to dismiss or motion for summary judgement, absent violation of the CPLR or improper conduct, are not proper subjects for either reliance by opposing counsel or review by this Court. As a result, this Court finds that estoppel against the State is unjustified and inappropriate in the case at bar.

Finally, claimant's motion for leave to file a late claim must also be denied.

The Court of Claims Act provides a remedy to a person who fails to timely commence an action in this Court. Upon proper motion, this Court has discretion to permit late filing "at any time before an action asserting a like claim against a citizen of the State would be barred under the provisions of article two of the civil practice law and rules" [Court of Claims Act § 10 (6)].

The instant claim accrued on July 19, 1997. CPLR § 214 (5) requires that an action for personal injuries be commenced within three years of accrual of the claim. By virtue of this legislative limitation on the exercise of discretion, Court of Claims Act § 10 (6) places an affirmative obligation upon the Court to ensure that the underlying CPLR Article 2 statute of limitations has not expired before granting a motion thereunder. Even had defense counsel desired to waive the statute of limitations, he did not have the requisite authority and neither does this Court.

Claimant's CPLR Article 2 limitations period expired in July, 2000. As a result, the Court cannot consider her request for permission to file a late claim and claimant's cross-motion for permission to do so must be denied.[6]

Based upon the foregoing, the State's motion to dismiss the claim on the grounds of untimely service is granted and the claim is dismissed. The cross-motion is denied in its entirety.

The following papers were read and considered by the Court upon the State's motion and

claimant's cross-motion:

Papers Numbered

Notice of Motion, Affirmation
and Exhibits Attached 1

Notice of Cross-Motion, Affirmation
and Exhibits Attached 2

Affirmation in Opposition to Cross-Motion 3

Reply Affirmation 4

Filed Papers: Claim and Answer

May 10, 2001
White Plains, New York

Judge of the Court of Claims

[1] Although issue has been joined, the motion is proper under CPLR 3211 (e) since it asserts lack of subject matter jurisdiction [CPLR 3211 (a) (2)]. See also, Diaz v State of New York, 174 Misc 2d 63; Wooten v State of New York, Claim No. 93933, Motion No. M-61266, filed 3/28/01, Patti, J.
[2] In the alternative, Claimant may serve a Notice of Intention within the time period, thereby extending the time to file and serve a claim. This procedure is not relevant to the instant motion.
[3] As distinguished from the CPLR, Court of Claims Act § 11 (a) specifically provides that service of a claim upon the Attorney General is complete when the claim is received by the Attorney General. Thus, the fact that Claimant may have mailed the claim prior to the expiration of the 90 day period is not controlling.
[4] It is noted that the lack of a colon or other punctuation at the end of the heading does not compel a different result. This Court cannot conclude that Judge O'Rourke intended to dispense with the entire statutory scheme for motion practice, especially relating to the threshold issue of jurisdiction, based upon nothing more than a typographical error.
[5] The cases cited by claimant (People v Thomas, 47 NY2d 37; Bender v New York City Health & Hospitals Corp., 38 NY2d 662) and the decision in People v Abbott Manor Nursing Home, 70 AD2d 434 provide rare examples of estoppel against the State. However, these cases are factually distinguished on the basis that the State in this matter gave claimant notice of the potential defense at the first available time and well before the CPLR Article 2 limitations period expired.
[6] The Court is not unmindful of the fact that this decision prevents claimant from having her "day in Court". However, while motions under section 10 (6) are generally decided upon the factors set forth therein, the expiration of the CPLR Article 2 limitation prevents the Court from reaching this balancing analysis.