New York State Court of Claims

New York State Court of Claims

HANSEN v. THE STATE OF NEW YORK, #2003-013-033, Claim No. 106488, Motion Nos. M-67252, CM-67742


Synopsis


Case Information

UID:
2003-013-033
Claimant(s):
GEORGE HANSEN and BEVERLY HANSEN
Claimant short name:
HANSEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106488
Motion number(s):
M-67252
Cross-motion number(s):
CM-67742
Judge:
PHILIP J. PATTI
Claimant's attorney:
THOMAS E. SCHIMMERLING, ESQ.
Defendant's attorney:
LAW OFFICES OF CHARLES G. DiPASQUALEBY: KEVIN E. KETCHUM, ESQ.
Third-party defendant's attorney:

Signature date:
December 22, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


On December 17, 2003, oral argument was heard and the following papers were read on Claimants' motion (M-67252) for an order striking Defendant's affirmative defense of untimeliness, or in the alternative to permit the filing of a late claim pursuant to Court of Claims Act §10(6); and Defendant's cross-motion (CM-67742) for an order denying Claimants' motion and dismissing the claim:
Claimants' Notice of Motion, Affirmation in Support, and Annexed Exhibits

Defendant's Notice of Cross-Motion, Affirmation in Support, and Annexed Exhibits

Affirmation of Thomas E. Schimmerling, Esq., dated December 15, 2003 in Opposition to Defendant's Cross-Motion


Upon review of the papers, and after hearing Thomas E. Schimmerling, Esq. on behalf of Claimants and Kevin E. Ketchum, Esq. on behalf of Defendant, Claimants' motion to strike the affirmative defense of untimeliness is granted and the Defendant's cross-motion to dismiss the claim is denied. I reserve decision on that part of Claimants' motion which seeks permission to file a late claim, only if it becomes necessary to render a ruling on that application in the event of an appeal herefrom.

I find that the answer served upon the Claimants' counsel inadvertently omitted inclusion of the third page thereof, which recited the affirmative defense of untimeliness. It has been held that where an answer initially failed to include affirmative defenses related to untimeliness or manner of service, it could be amended as of right within 40 days of service of the claim, to wit, before service of the responsive pleading was required (Harris v State of New York, 190 Misc 2d 463). The purpose and intent of the Harris decision was to measure the period of notice of such affirmative defenses to Claimants.

In the instant matter, the answer served upon the Claimants on or about September 20, 2002, did not include any affirmative defenses related to timeliness, apparently because of the inadvertent omission of the third page, and thus Claimants were not on notice of such contentions until service of the said third page was made on April 11, 2003, nearly seven months beyond the date of service of the claim. While this was an inadvertent omission, and one of which the Defendant was not cognizant until it was brought to its attention during a conference with the Court, by then it was too late to overcome the passage of time without prejudicing the Claimants and contravening Harris, supra. Accordingly, in the interests of justice, and in accord with the holding of Harris, supra, the Claimants' motion to strike the affirmative defense is granted, and the cross-motion to dismiss is denied.

The Clerk is directed to serve this order upon the parties.


December 22, 2003
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims