New York State Court of Claims

New York State Court of Claims

VANN v. THE STATE OF NEW YORK, #2004-009-69, Claim No. 106118, Motion Nos. M-68710 , CM-68924


Claimant's motion for an order directing judgment in his favor was denied, and defendant's cross-motion to amend its answer in order to assert the jurisdictional defense of untimely service and filing was denied, but its request for a conditional order of preclusion was granted.

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:
Defendant's attorney:
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
October 26, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought a motion (M-68710) seeking an order directing judgment in his favor in the amount of $15,000.00. In opposition, defendant has responded with a cross-motion (CM-68924) seeking permission to amend its answer, as well as for an order compelling claimant to answer previously served discovery demands and its demand for verified bill of particulars.

The following papers were considered by the Court in connection with these motions:
"Petition to Settle Claim" 1

Notice of Cross-Motion, Affirmation in Support, with Exhibits 2,3

"Letter/Motion Response to Defendant's Motion to Amend Answer & Compel" 4

In his filed claim, claimant seeks damages for the value of certain items of his personal property which were allegedly lost by the State when claimant was transferred from Mid-State Correctional Facility to Lakeview Correctional Facility on or about October 29, 2000. His claim was served upon the Attorney General on May 9, 2002, and was filed with the Clerk of the Court on May 24, 2002.

In his motion, claimant indicates his willingness to settle this claim for the sum of $15,000.00, and has requested that this Court approve such settlement and direct the entry of judgment in his favor for that amount.

Before a Court may compel a settlement of a claim there must first be a stipulation of the parties satisfying the requirements of CPLR Rule 2104. That rule requires that a stipulation must either (1) be made in open court, (2) be written and subscribed, or (3) be reduced to a court order and entered.

In this matter, not only has claimant failed to provide any stipulation satisfying any of these requirements, defendant, in its answering papers, has given no indication whatsoever that it is willing to settle this claim. Accordingly, the Court must find that claimant has not provided any legal basis to substantiate his request for a court approved settlement of this claim.

To the extent, if any, that this motion can be viewed as one seeking an order of summary judgment, it is patently clear that defendant, in its answering papers, has raised material issues of fact, both as to liability as well as to the amount of damages sought by claimant.

Claimant's motion must therefore be denied in its entirety.

In its cross-motion, defendant seeks permission to amend its answer by withdrawing the third affirmative defense contained in said answer, in which it alleged that claimant had not filed his claim with the Clerk of the Court as required by § 11(a) of the Court of Claims Act. Defendant now concedes that this claim was filed with the Clerk as of May 24, 2002.

In reviewing defendant's answer, the Court notes that defendant has asserted, among other affirmative defenses, two separate affirmative defenses both labeled as a "third affirmative defense". Accordingly, based upon the request made in defendant's cross-motion, the "third affirmative defense" set forth as paragraph seven in defendant's verified answer dated June 10, 2002 is hereby stricken.

Additionally, defendant seeks permission to further amend its answer, allowing it to assert a jurisdictional defense of untimely service and filing of the claim. Specifically, defendant wishes to assert an affirmative defense that the claim was not served within 120 days of the final administrative denial of his lost property claim, as required by Court of Claims Act § 10(9).

Court of Claims Act § 11(c), however, requires that any objection or defense based upon a failure of a claimant to comply with the time limitations set forth in § 10 is waived unless such objection or defense is raised, with particularity, either in a pre-answer motion to dismiss or in the responsive pleading.

In this matter, since defendant neither made a pre-answer motion to dismiss, nor raised any defense to the timeliness of service of the claim in its answer, the Court must therefore find that the defendant has waived such a defense, and the claim may not be dismissed on this basis. Therefore, it would serve no purpose to allow the defendant, at this stage in the proceedings, to amend its answer to assert a defense based upon untimeliness of service (Knight v State of New York, 177 Misc 2d 181; Nasuf Constr. Corp. v State of New York, 185 AD2d 305). Accordingly, since defendant has waived its defense as to untimeliness pursuant to Court of Claims Act § 11(c), such a defense may not now be asserted for the first time in an amended answer.

In its cross-motion, defendant also seeks a conditional order of preclusion based upon claimant's alleged failure to provide a verified bill of particulars in response to a demand made by the defendant. As set forth in defendant's moving papers, a Demand for Verified Bill of Particulars was served upon claimant on or about June 10, 2002 (see Exhibits C and D to Items 2,3). Claimant served a response to this demand on or about July 6, 2002, in which he set forth certain general objections, and also maintained that all information sought by the defendant had previously been disclosed (see Exhibit F to Items 2,3).

The Court has reviewed the aforesaid documents, and finds that the particulars demanded by the defendant are relevant, material, and appropriate for a bailment cause of action. The Court has also reviewed claimant's response to these demands, and finds such responses to be unresponsive. Defendant's cross-motion for a conditional order of preclusion is therefore granted.

Based on the foregoing, therefore, it is

ORDERED, that Motion No. M-68710 is hereby DENIED, in its entirety, and it is further

ORDERED, that Cross-Motion No. CM-68924 is hereby GRANTED, in part, and DENIED, in part; and it is further

ORDERED, that the "third affirmative defense" set forth as paragraph seven in defendant's answer dated June 10, 2002 is hereby stricken; and it is further

ORDERED, that claimant is hereby compelled and directed to respond fully to and answer defendant's Demand for Verified Bill of Particulars, and serve his Verified Bill of Particulars within 30 days from the service of a copy of this Order upon claimant; and it is further

ORDERED that claimant is hereby precluded from offering any evidence or testimony as to which Particulars have not been furnished, unless, within 30 days from service of a copy of this Order upon claimant, the claimant shall serve upon the attorney for the defendant his full and complete Verified Bill of Particulars.

October 26, 2004
Syracuse, New York

Judge of the Court of Claims