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