The State moves to dismiss
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
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
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
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
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
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.
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
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
Finally, claimant's motion for leave to file a late claim must also be
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
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
Notice of Motion, Affirmation