New York State Court of Claims

New York State Court of Claims

GONZALEZ v. THE STATE OF NEW YORK, #2004-015-378, Claim No. 105037, Motion No. M-67699


Synopsis


Court denied State's motion to dismiss claim for untimely service of notice of intention made on eve of trial where State waived the defense by failing to bring a pre-answer motion and failed to raise defense with particularity in the answer.

Case Information

UID:
2004-015-378
Claimant(s):
ENRIQUE GONZALEZ
Claimant short name:
GONZALEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105037
Motion number(s):
M-67699
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Enrique Gonzalez, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 23, 2004
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's motion to dismiss the claim for lack of jurisdiction stemming from the untimely service of a notice of intention to file a claim and the resulting untimely service of the claim itself is denied. The instant claim seeks damages for personal injuries sustained by claimant on May 10, 2001 at Great Meadow Correctional Facility when he slipped and fell after allegedly being ordered by a correction officer to leave the shower without washing off the soap he had previously applied. Claimant sustained an injury to his right ankle as a result of the fall and he seeks compensation for the injury and for the alleged subsequent malpractice of DOCS medical personnel.

On the eve of trial the defendant moved to dismiss the claim on the ground that the Court lacked jurisdiction since the notice of intention was not served within 90 days of the claim's accrual and that the subsequent service of the claim on October 11, 2001 was, therefore, untimely.

Section 11 (c) of the Court of Claims Act provides:
c. Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, or (ii) the manner of service requirements set forth in subdivision a of this section is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.

In the instant matter defense counsel neither submitted a pre-answer motion to dismiss the claim based upon the untimely service of the notice of intention nor raised with particularity the alleged untimeliness of the claim in the answer (see, Sinacore v State of New York, 176 Misc 2d 1; Fowles v State of New York, 152 Misc 2d 837).

Accordingly, the defense of untimely service has been waived and the instant motion to dismiss the claim for lack of jurisdiction is denied.

January 23, 2004
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
1. Notice of motion dated November 20, 2003;
  1. Affirmation of Kevan J. Acton dated November 20, 2003 with exhibits.