New York State Court of Claims

New York State Court of Claims

LIBOUS v. THE STATE OF NEW YORK, #2003-032-135, Claim No. 102281, Motion Nos. M-67246, CM-67258


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:
Pearis, Kline, Barber & Schaewe, LLPCatherine C. Schaewe, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Joseph F. Romani, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
December 31, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This claim resulted from an April 19, 1998 highway accident in which claimant was injured while riding in a vehicle operated by Cynthia Kozlowski. The vehicle was traveling east on State Route 11 when it crossed over the centerline of the highway and collided with a westbound vehicle. It is alleged that the State of New York is responsible for claimant's injuries because the portion of the roadway where the accident occurred was improperly designed, resulting in inadequate and unsafe drainage from that location.

In its answer, the State raised several affirmative defenses, and an additional defense was subsequently added by stipulation.[1] Defendant now seeks to amend the answer to assert the following as a seventh affirmative defense:
Defendant, through its agents and/or employees, took action and made discretionary determinations within its budgetary constraints and limitations concerning the area in question in the claim, and, therefore, defendant is immune from any liability for such actions and determinations.
(Romani affirmation, ¶12.) This step is being taken, according to defense counsel, because depositions of the Resident Engineer and other discovery have revealed that a proposed renovation project for this area of the highway (Project Proposal PIN 904326) was not implemented prior to the date of the accident because of budgetary constraints. Claimant has cross-moved, seeking denial of the motion to amend and an order precluding defendant from raising the issue of qualified governmental immunity at trial. Alternatively, if defendant's motion is granted, claimant seeks an order granting additional time in which to conduct discovery related to the new affirmative defense.

It is not entirely clear that this motion to amend is necessary. That is, it is not clear that sovereign immunity, specifically qualified governmental immunity, must be raised as an affirmative defense.[2] CPLR 3018(b) requires, with respect to affirmative defenses, that "[a] party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading." When an action for money damages is commenced against the State, there can be no "surprise" to a litigant that sovereign immunity will be at issue, because the Court of Claims has jurisdiction to entertain only those claims that fall within the State's waiver of its sovereign immunity.

It is axiomatic that the State's waiver of its sovereign immunity to suit is not absolute (Searles v Town of Horicon, 116 AD2d 93 [3d Dept 1986]), and most notably and most relevant to the instant motion, the State has retained its immunity for those governmental actions that are quasi-judicial, or require expert judgment, or the exercise of discretion (Arteaga v State of New York, 72 NY2d 212 [1988]). Discretionary acts, those acts involving the exercise of reasoned judgment which can typically produce different acceptable results (Tango v Tulevech, 61 NY2d 34), do not ordinarily result in the imposition of liability on the State even if harm results.

Consequently, when a claim is based upon allegations that the claimant's injury was caused by negligent highway design, the starting point for any litigant must be recognition that "the State is entitled to qualified immunity for claims arising out of its highway planning decisions, unless its study was plainly inadequate or lacked a reasonable basis" (Weiss v Fote, 7 NY2d 579 [1960], rearg denied 8 NY2d 934). Planning decisions made with respect to the design, repair and maintenance of highways are discretionary and consequently are protected by a qualified immunity (Schwartz v New York State Thruway Auth., 95 AD2d 928, 929 [3d Dept 1983], affd 61 NY2d 955; Weiss v Fote, supra), and part of that discretionary decision-making process is giving consideration to the allocation of finite budgetary resources and responding to fiscal realities (see, Edouard v Bonner, 224 AD2d 575, 577 [2d Dept 1996], lv. denied 88 NY2d 811; Trautman v State of New York, 179 AD2d 635 [2d Dept 1992], lv. denied 79 NY2d 758; Van De Bogart v State of New York, 133 AD2d 974 [3d Dept 1987]["the relative costs and fiscal priorities" are to be considered by the State's engineer in deciding whether to implement certain design changes]).

In order to state a cause of action in the Court of Claims, therefore, a claimant must at least implicitly allege and establish that the actions for which the State is allegedly liable are actions for which its sovereign immunity has been waived. Because the issue of such immunity is present from the very outset in any Court of Claims action, litigants can hardly claim surprise if and when the State seeks protection of that immunity. More fundamentally, in the Court of Claims, an allegation that defendant is protected by sovereign immunity is more than a "defense" it is a key consideration as to whether the Court has authority to hear the claim.

While lack of subject matter jurisdiction is recognized as a ground on which dismissal can be sought (CPLR 3211[a][2]), it is not one of the grounds that is deemed waived unless raised by motion or in a responsive pleading (CPLR 3211[e]). The statute provides that motions to dismiss based on, among others, lack of subject matter jurisdiction "may be made at any subsequent time." It is well established that "[j]urisdiction of the action cannot be conferred upon the court by any consent or stipulation of the parties [and] objection to the jurisdiction in such a case may be taken at any stage of the action," and it may be raised by any party or by the Court itself (Robinson v Oceanic Steam Nav. Co., 112 NY 315 [1889]; see also Siegel, New York Practice, 2d ed, §8 ["The objection may be taken at any stage of the action, and the court may, on its own motion whenever its attention is called to the facts, refuse to proceed further, and dismiss the action."]). This is so because "a judgment entered without subject matter jurisdiction is void" and thus the defect "may be raised at any time and may not be waived" Lacks v Lacks, 41 NY2d 71, 75 [1976]; see also, Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]; Robinson v Oceanic Steam Nav. Co., 112 NY 315 [1889]; Morrison v Budget Rent A Car Systems, Inc., 230 AD2d 253 [2d Dept 1997]).[3] Consequently, while it is common practice, and good practice, for a defendant to raise governmental immunity as an affirmative defense, which in this Court equates with subject matter jurisdiction, failure to do so does not and cannot act as a waiver.

Leave to amend pleadings "shall be freely given" absent prejudice or surprise resulting from the delay (CPLR 3025[b]). Neither mere lateness nor the absence of an excuse for the delay is a barrier to amendment, and the opposing party must demonstrate significant prejudice to justify denial of an application for an amendment (see, Edenwald Contr. Co. v City of New York, 60 NY2d 957 [1983]; Wooten v State of New York, 302 AD2d 70, 73-74 [4th Dept 2002]; Hilltop Nyack Corp. v TRMI Holdings Inc. 275 AD2d 440 [2d Dept 2000]). Claimant can hardly be surprised, or prejudiced, to learn that governmental immunity is an issue in this case. More fundamentally, defendant has the right to raise subject matter jurisdiction at any time. Therefore, it would be an abuse of discretion to prevent defendant from relying on this defense.

Defendant's motion is granted; claimant's cross motion for an order of preclusion is denied; and claimant's cross motion for an extension of time is denied as unnecessary. Any requests for time for additional discovery will be addressed at a scheduling conference.

December 31, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion for permission to serve an amended answer and on claimant's cross motion for an order of preclusion or an extension of time:
1. Notice of Motion and Supporting Affirmation of Joseph F. Romani, Esq., AAG, with annexed Exhibits

2. Notice of Cross Motion and Supporting Affirmation of Catherine C. Schaewe, Esq., with annexed Exhibits

Filed papers: Claim; Answer

[1] These affirmative defenses are the following: 1) claimant's culpable conduct, 2) third party's culpable conduct, 3) failure to use seat belt, 4) no "serious injury," 5) CPLR, article 16 [joint and severable liability]; and 6) General Obligations Law 15-108 [effect of prior settlement or judgment]).
[2] Defense counsel states that this motion was brought "in the interests of clarity and in order to avoid confusion" rather than certainty that the matter must be raised in this fashion (Romani affirmation, ¶11).

[3]Claimant's argument, based on Harlow v Fitzgerald (457 US 800 [1982]), which in turn relies on Gomez v Toledo (446 US 635 [1980]), is inapplicable. Those decisions related actions based on the Federal civil rights statutes (42 USC §1983), which are commenced against individuals, not sovereigns. In any event, given the unique nature of the Court of Claims and the limits of its jurisdiction to hear claims, a decision construing the requirements for pleading a statutory cause of action in another court cannot be seen as controlling or even particularly relevant.