New York State Court of Claims

New York State Court of Claims

LAWYER v. THE STATE OF NEW YORK, #2005-036-101, Claim No. 109555, Motion No. M-70377


Defendant's motion to amend its answer to assert a defense based on the statute of limitations is granted. Claimant's effort to categorize his claim as one asserting a constitutional tort is unsuccessful.

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):

Melvin L. Schweitzer
Claimant's attorney:
Michael Lawyer, pro se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: J. Gardner Ryan Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 6, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Counsel for Defendant has moved for permission to file and serve an amended answer to assert a defense based on the statute of limitations. This action, alleging that a Correction Officer at Fishkill Correctional Facility assaulted Claimant, arose on April 15, 2003. On June 23, 2003, Claimant served a notice of intention to file a claim on the Attorney General (Ryan affirmation, Exhibit B). In that notice, Claimant alleged that earlier in the day on April 15, two other Correction Officers told Correction Officer T. Gatto that Claimant had called him a "jerk" and that Officer Gatto then "retaliated." The Court finds that the cause of action set forth in the notice of intention is an intentional tort, and, as defense counsel notes, the notice of intention was served within ninety days after the claim accrued and thus was timely (Court of Claims Act § 10 (3-b)).

The claim in this action was filed with the Clerk of the Court on June 30, 2004, and a copy of the claim was served on the Attorney General two days earlier, on June 28. In its answer, Defendant State of New York raised the following affirmative defenses: Claimant's culpable conduct, lack of particularity as to Defendant's alleged wrongdoing, and culpable conduct of third parties. Defendant now moves for permission to amend that answer to assert, inter alia, the following defense:
The filed claim is barred by the passing of the applicable statute of limitations in that the claim was served and filed more than one (1) year after accrual of the claim (CPLR § 215 (3)).
CPLR 215 (3) provides that actions to recover damages for assault, as well as other torts generally considered to be intentional torts, must be commenced within one year. The parallel time limitation contained in the Court of Claims Act, section 10 (3-b), provides that a claim to recover damages for property damage or personal injury caused by the intentional tort of a State employee must be commenced within ninety days after the accrual of the claim or, if a notice of intention is employed, within one year after the accrual of such claim. Thus, the outside time limitation (i.e., the latest date on which a claim can be filed) in the Court of Claims Act is the same as the corresponding statute of limitations.[1]

Counsel for defendant has not moved for permission to amend the answer to assert that Claimant failed to comply with the one-year time limitation contained in Court of Claims Act § 10 (3-b). Such a motion could not be successful, for it is now well-established that restrictive language found in section 11(c) of the Court of Claims Act[2] prevents such a defense from being raised in an amended answer (Adebambo v. State of New York, 181 Misc 2d 181 [Ct Cl 1999]; Knight v. State of New York, 177 Misc 2d 181 [Ct Cl 1998]; Sinacore v. State of New York, 176 Misc 2d 1 [Ct Cl 1998]; but see, Harris v. State of New York, 190 Misc 2d 463 [Ct Cl 2002] [Defendant may amend its answer to raise such a defense within the initial 40-day period during which an answer can be filed]).

Where a timeliness defense based on the Court of Claims Act has been waived by operation of section 11(c), it is nevertheless possible for a claim to be dismissed for failure to comply with the CPLR statute of limitations. In Firth v. State of New York (184 Misc 2d 105 [Ct Cl 2000], affd 287 AD2d 771 [3d Dept 2001], affd 98 NY2d 365 [2002]), which involved the intentional tort of defamation, the State's answer failed to assert any defense based on failure to comply with section 10 (3-b) of the Court of Claims Act. The answer included, however, an affirmative defense alleging failure to comply with the CPLR 215 (3) statute of limitations. Because the claim had been filed more than one year after the date that the claim accrued, the action was dismissed.
[T]hose seeking to sue the State for intentional torts committed by State officers or employees must, in addition to meeting the jurisdictional time limits contained in subdivision 3 of section 10 of the Court of Claims Act, comply with CPLR 215 (subd 3) or risk having their claim dismissed if a timely Statute of Limitations defense is raised.
(184 Misc 2d, at 110; accord, Poe v. State of New York, #2005-018-462, Claim No. 108694, Motion No. M-69366 [Ct Cl March 29, 2005], Fitzpatrick, J.; see also, Trayer v. State of New York, 90 AD2d 263, 268-269 [3d Dept 1982]).

In the instant case, however, Defendant did not raise a timely statute of limitations defense although the defense appears to be meritorious (see, Herrick v. Second Cuthouse, 64 NY2d 692 [1984]). The claim here was filed and served approximately 14 months after the cause of action accrued.

CPLR 3211(a) (5) lists the statute of limitations as one of a number of defenses that can provide a basis for a motion to dismiss. Subdivision (e) of CPLR 3211provides, in pertinent part, that "[a]ny objection or defense based upon a ground set forth in paragraphs one, three, four, five and six of subdivision (a) is waived unless raised either by such motion or in the responsive pleading." The CPLR waiver provision does not, however, contain the additional, more restrictive phrase found in the waiver provision of Court of Claims Act § 11 (c): "and if so waived the court shall not dismiss the claim for such failure" (see, footnote 2).

In the absence of such a restrictive provision and in light of the directive of CPLR 3025 (b) that leave to amend be "freely given," courts have consistently held that even a defense that is deemed waived by operation of CPLR 3211 (e) may nevertheless be raised in an amended answer as long as permitting the amendment does not cause the claimant "prejudice or surprise resulting directly from the delay" (Fahey v. Ontario County, 44 NY2d 934, 935 [1978]; see, CPLR 3025 (b)). It has also been held consistently that even if an amendment to assert a statute of limitations defense will result in the action being dismissed as time-barred, this is not prejudice stemming "directly from the delay" (Fahey v. County of Ontario, supra, **revg 55 AD2d 1034 [4th Dept 1977]; see also, Hickey v. Hutton, 182 AD2d 801 [2d Dept 1992]; Seda v. New York City Housing Authority, 181 AD2d 469, 470 [1st Dept], lv denied 80 NY2d 759 [1st Dept 1992]; Nelson v. Downstate Medical Center, 135 Misc 2d 980 [Sup Ct, Kings County 1987], affd 146 AD2d 683 [2d Dept 1989], appeal dismissed, lv denied 74 NY2d 684 [1989]).

The type of prejudice that must be considered on a motion to amend "arises when a party incurs a change in position or is hindered in the preparation of its case or has been prevented from taking some measure in support of its position" and the problems would have been avoided if the original pleading had contained the proposed amendment (Valdes v. Marbrose Realty, Inc., 289 AD2d 28 [1st Dept 2001]). Thus, where a defendant hospital delayed for ten years before seeking to raise a statute of limitations defense and had no excuse for the delay, it was held that the plaintiffs, who had engaged in lengthy discovery proceedings which included ten depositions and produced substantial evidence, had been severely prejudiced by the delay itself and the motion was denied (Cseh v. New York City Transit Authority, 240 AD2d 270 [1st Dept 1997]); see also, Cameron v. 1199 Housing Corp., 208 AD2d 454 [1st Dept 1994] [six-year delay and action already on the trial calendar]). In another case, where the amendment was sought two years after a note of issue was filed, the trial court found the plaintiffs had been prejudiced to some degree by engaging in discovery and spending time and expense preparing for trial but concluded that the prejudice could be relieved by directing defendant to pay plaintiffs' costs (Coleman v. Chesebro-Whitman Co., 177 Misc 2d 560, 562 [Sup Ct, Nassau County Mar. 31, 1998], on rearg 177 Misc 2d 566, modified on other grounds). Absent a specific showing of prejudice, however, amendment to assert a statute of limitations defense is typically granted, even where the motion is made after a note of issue has been filed (see, e.g., Board of Education of Sachem Central School Dist. v. Eugene J. Donohue Associates, Inc., 298 AD2d 482 [2d Dept 2002]). In the instant case, discovery has barely commenced and Claimant has made no showing of prejudice.

In apparent recognition that controlling precedent may require this Court to allow the amendment and, foreseeably, to grant a subsequent defense motion to dismiss the claim as time-barred, Claimant has submitted opposition papers that, in content if not in form, seek permission either to amend his claim or to file a late claim that will assert a cause of action for a constitutional tort (based on the prohibition against cruel and unusual punishment). As Claimant notes, the statute of limitations applicable to such a cause of action is three years (CPLR 214 [5] (Brown v. State of New York, 250 AD2d 314, 318-319 [1998], on remand from 89 NY2d 172 [1996]), and the applicable time limitation of the Court of Claims Act requires that, where a notice of intention is employed, the claim be filed and served within two years after the date of accrual (Lyles v. State of New York, 3 NY3d 396 [2004]).

Claimant's effort in this regard must fail. Attempts to re-style causes of action that are, in essence, intentional torts as some other type of claim, to which a more generous time limitation and/or statute of limitations is applicable, are not permitted (Smith v. State of New York, #2003-019-514, Motion No. M-66244 [Ct Cl Feb 18, 2003]), Lebous, J.; Lee v. State of New York, #2002-013-039, Motion No. M-65575 [Ct Cl Dec 18, 2002], Patti, J.; see also, Dunn v. Brown, 261 AD2d 432, 433 [2d Dept 1999] ["allegations of intentional conduct cannot form the basis of a claim founded in negligence"]). In addition, a remedy based on the State constitution lies only if (1) the constitutional provision is self-executing; (2) the substantive right is firmly established; (3) the implied tort is necessary or appropriate to ensure the effectiveness of the provision; and (4) the claimant has no common law or statutory remedy available to him (Brown v. State of New York, 89 NY2d 172 [1996]). As was the case in Waxter v. State of New York, (6 Misc 3d 1035(A), 2005 WL 562745 [Ct Cl 2005]), Claimant's allegations here could have been readily addressed in a timely commenced common-law cause of action for assault or brought as an action based on 42 USC § 1983 in Supreme Court or Federal court.

For the reasons set forth above, Defendant's motion is granted, and defense counsel is directed to file and serve the amended answer within 30 days after the date this decision and order is file-stamped.

September 6, 2005
New York, New York

Judge of the Court of Claims

The Court has read and considered the following papers in connection with this motion:

1. Notice of Motion and Supporting Affirmation of J. Gardner Ryan, Esq., AAG with annexed proposed verified amended answer and exhibits

2. Affidavit in Opposition of Michael Lawyer, pro se, with annexed exhibits

Filed papers: Claim; Answer

[1] This is true also for actions for appropriation of lands and for wrongful death (compare, Court of Claims Act § 10[1] with EDPL § 503 [3 years after acquisition]; compare, Court of Claims Act § 10 (2) with EPTL § 5-4.1 [2 years after death of decedent]). For the far more numerous claims for personal injury or property damage resulting from negligence or unintentional tort and for contract actions or "other" claims, the Court of Claims time limitation is shorter than the applicable Statute of Limitations (compare, Court of Claims Act §§ 10 (3) & 10 (3-a) [2 years] with CPLR 214 [3 years] or 214-a [2 1/2 years]; compare, Court of Claims Act § 10 (4) [2 years] with CPLR 213 [6 years] ).
[2] Court of Claims Act § 11 (c) reads as follows: "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" (emphasis supplied).