New York State Court of Claims

New York State Court of Claims

CURRY v. THE STATE OF NEW YORK, #2004-013-005, Claim No. 106406, Motion Nos. M-66332, CM-66403


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 of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 14, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


On October 15, 2003, the following papers were read on motion by Claimant for an order striking certain affirmative defenses, and on cross-motion by Defendant for dismissal:
Notice of Motion, Affidavit and Exhibits Annexed

Defendant's Reply Affirmation and Exhibit Annexed

Notice of Cross-Motion; Affirmation and Exhibit Annexed

Filed Papers: Claim; Amended Claim; Answer

Upon the foregoing papers, to the extent noted, the motion is denied and the cross-motion is granted.

This is Claimant's motion to strike Defendant's seventh through fourteenth affirmative defenses. The Defendant has made a cross-motion seeking summary judgment dismissing the claim. The proceedings up to this date take a complicated set of procedural turns, which require brief recitation for the sake of clarity.

A claim (actually denominated a complaint, and accompanied by a summons) was filed herein on July 23, 2002, alleging "an intentional assault committed by correctional security personnel" at Attica Correctional Facility (Attica) on or about August 20, 2001. The claim recites that a notice of intention to file a claim was filed [sic][1] within 90 days of the incident. Somewhat confusingly, while asserting that the claim is for an intentional assault, the claim then proceeds to assert as a first cause of action that correctional personnel were negligent in their care of Claimant, and as a second cause of action that the said correctional personnel staff were in direct violation of Correction Law §137(5).

The Defendant filed an answer on August 22, 2002, alleging, inter alia, 13 affirmative defenses, including several which alleged what might be termed jurisdictional infirmities.

Thereafter, on September 6, 2002, Claimant filed an amended claim (and an amended summons [sic]), as of right, as permitted by 22 NYCRR 206.7 - Responsive and Amended Pleadings:
(b) Pleadings may be amended in the manner provided by CPLR 3025, except that a party may amend a pleading once without leave of court within 40 days after its service, or at any time before the period for responding to it expires, or within 40 days after service of a pleading responding to it.

On September 18, 2002, the Defendant filed its amended answer, this time asserting 14 affirmative defenses, and Claimant now seeks to strike affirmative defenses 7 through 14. By cross-motion, the Defendant seeks summary judgment dismissing the amended claim.

I note that the claim and amended claim make identical verbatim allegations and that the only differences between the two pleadings are that the amended claim (1) has inserted a new paragraph "2" which alleges the Claimant's then current address, which address had changed from the time of the filing of the claim, and (2) adds a paragraph entitled "Verification" dated the same date as the amended claim, September 5, 2002.

I adjourned the motion and cross-motion here to October 15, 2003, noting that while the cross-motion focused primarily on grounds related to verification, I wanted the Defendant to address a more fundamental question relating to the timeliness and manner of service of the claim and amended claim. I directed the Defendant to serve and file any additional affidavits and legal arguments and allowed Claimant an opportunity to respond should he so desire. Defendant filed a reply affirmation addressing the questions I raised, while Claimant did not respond thereto.

Consistent with its ninth affirmative defense, Defendant in Paragraph "10" of its reply affirmation, alleges that the claim/complaint was served on July 23, 2002[2], by regular mail and not certified mail return receipt requested, as required by Court of Claims Act §11(a)(i), and thus the Court has no jurisdiction over the claim. With respect to this issue, Claimant's counsel impliedly acknowledges the improper service by noting that the claim was filed within one year of its accrual, and that the complaint [sic] was "amended to provide for correct service on the attorney general on September 6, 2002." Lest there be any question, the manner of service of a claim is mandated by Court of Claims Act §11(a)(i), and is jurisdictional in nature. Service of claims by ordinary mail is insufficient to acquire jurisdiction over the State (Charbonneau v State of New York, 178 AD2d 815, 816, affd sub nom. Dreger v New York State Thruway Auth., 81 NY2d 721; Turley v State of New York, 279 AD2d 819; rearg denied 96 NY2d 855).

Since a jurisdictional defect may not be remedied by amendment of the original claim

(Grande v State of New York, 160 Misc 2d 383), and since the claim served on July 23, 2002, was not served in a manner consistent with the statutory requirements, jurisdiction over the Defendant was not obtained. I note that the Defendant preserved this defense with sufficient particularity in the ninth affirmative defense as required by Court of Claims Act §11(c). The Claimant did not respond to the Defendant's reply affirmation, despite having been given the opportunity to do so. Accordingly, to the extent that Claimant's motion seeks to strike the ninth affirmative defense, it is denied. To the extent that the State's cross-motion seeks to dismiss the claim because of improper service of the claim, it is granted. It not necessary for me to address the other grounds for dismissal sought by Defendant in its cross-motion. All other relief sought by Claimant in his motion is denied as moot. The claim is dismissed.

January 14, 2004
Rochester, New York

Judge of the Court of Claims

  1. [1]A notice of intention must be served upon the Defendant, but is not filed with the Clerk.
  2. [2] Defendant's affirmation, paragraph 3, alleges that this claim was served on July 30, but the affirmative defense, and my reading of the envelope (Exhibit 1 to Defendant's papers), reflect service on July 23, 2002. In any event this date discrepancy is of no consequence.