New York State Court of Claims

New York State Court of Claims

LEE v. THE STATE OF NEW YORK, #2002-005-511, Claim No. 101327, Motion No. M-64707


Synopsis


Defendant's motion for dismissal of the claim is denied.

Case Information

UID:
2002-005-511
Claimant(s):
EDDIE JAMES LEE, SR.
Claimant short name:
LEE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101327
Motion number(s):
M-64707
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Eddie James Lee, Sr.,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 13, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On March 13, 2002, the following papers, numbered 1 to 4, were read on motion by Defendant for dismissal of the claim:

1, 2 Notice of Motion, Affirmation and Exhibits Annexed
  1. Opposing Papers: "Final Notice of Motion"
  2. Filed Papers: Claim
Upon the foregoing papers, this motion is denied.

In this motion, the Defendant seeks to dismiss the claim because it was not timely served. The affirmation in support of the motion notes that it was served with a Notice of Intention to file a claim herein on June 6, 1997, alleging damages for an injury to Claimant's back, accruing on or about May 13, 1997. The Defendant acknowledges service of the claim herein on November 10, 1999, and the files of the Chief Clerk reflect filing herein on October 29, 1999.

The Defendant seeks dismissal of the claim herein on the ground that Claimant has vitiated Court of Claims Act §10 (3-a) in that the claim was served and filed more than two years after the accrual of the claim in May 1997. Defendant urges the failure to obtain personal jurisdiction over the Defendant and seeks dismissal consistent with CPLR 3211(a)(5).

The motion must be denied, even though Claimant's opposing papers do not address the motion. The Defendant does not allude to, and the files of the Chief Clerk are devoid of, an Answer to this claim. Court of Claims Act §11(c) recites:
c. Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, or (ii) the manner of service requirements set forth in subdivision a of this section 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.

In the absence of an Answer preserving jurisdictional defenses related to timeliness, and in the absence of a motion to dismiss based upon timeliness grounds having been made within 40 days of the service and/or filing of the claim (22 NYCRR 206.7 [a]), the Defendant has waived the defense of untimely service or filing of the claim and the motion must be denied. Merely denominating the defense as one alleging the lack of personal jurisdiction pursuant to CPLR 3211(a)(5), will not defeat the exacting waiver of such defenses so clearly set forth by the legislature in its enactment of §11(c) (L.1990, c.625).

The motion is denied, and trial will go forward on June 4, 2002, at Auburn Correctional Facility.


March 13, 2002
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims