New York State Court of Claims

New York State Court of Claims

OLIVER v. THE STATE OF NEW YORK, #2006-013-024, Claim No. 111686, Motion Nos. M-71313, CM-71549


Where the notice of intention was improperly served, the answer alleged the affirmative defenses of untimely service and filing of the claim and the lack of personal jurisdiction. The Court held that the stipulation of the parties to extend the time to file the answer did not preserve such timeliness defenses when the answer was not filed within the original period of 40 days permitted by court rule.

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:
Third-party defendant’s attorney:

Signature date:
May 23, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


On May 17, 2006, the following papers were read on motion by Claimant to strike certain affirmative defenses or for permission to file a late claim; and on cross-motion by Defendant for summary judgment, dismissing the claim:

Notice of Motion, Affidavits and Exhibits Annexed

Notice of Cross-Motion, Affirmation and Exhibits (including Eric Peters Affidavit) Annexed

Claimant’s Reply Affidavit

Filed Papers: Claim; Answer

Upon the foregoing papers, the motion and cross-motion are granted in part and denied in part.

On February 19, 2004, Claimant George H. Oliver was injured in an accident in the Town of Kendall while working as an employee of the Water Department of the Town of Hamlin, and then commenced an action in the Court of Claims against the State of New York, as well as one in Supreme Court against other defendant(s).

This claim was filed on December 1, 2005, and an answer was filed on January 27, 2006, raising several affirmative defenses. In response thereto, Claimant brings the instant motion seeking to strike the second affirmative defense, asserting the lack of personal jurisdiction over the Defendant, and the fifteenth affirmative defense, which essentially asserts that the claim was not timely filed or served within 90 days of its accrual because a notice of intention to file a claim was not properly served upon the Defendant and thus did not extend Claimant’s time to serve and file his claim. In the alternative, Claimant seeks permission to file a late claim pursuant to Court of Claims Act §10(6).

By cross-motion, the Defendant seeks to dismiss the causes of action sounding in common law negligence and violation of Labor Law §200 and §240(1), as well as opposing the relief sought in the motion.

First, it is undisputed that the notice of intention to file a claim was not served upon the Attorney General, contravening the service requirements of Court of Claims Act §11(a)(i), and in and of itself did not extend Claimant’s time to serve and file his claim. On the other hand, any defense or objection alleging failure to comply with the time limitations of Section 10 must be raised, “with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading” (Court of Claims Act §11[c]). Here the claim was mailed by certified mail, return receipt requested, on November 29, 2005, and was filed with the Clerk of the Court on December 1, 2005.[1]

Defendant’s answer was not filed until January 27, 2006, some 57 days thereafter, beyond the 40 days permitted in the rules of the Court of Claims (22 NYCRR 206.7[a]). While I note that the Claimant unilaterally extended the deadline for the defense to answer the claim until January 30, 2006, Rule 206.7(c) requires that “[s]tipulations between parties extending the time limits herein shall be executed prior to the expiration of such time limits, and shall be filed with the clerk within ten days thereafter.” Neither of these requirements were accomplished. The answer was thus filed prior to January 30, 2006, but that filing was beyond the period allowed in the rules. In another unrelated, but compellingly parallel matter, it was held that the defendant was permitted to amend its answer as of right to raise timeliness objections only if it did so within the original period of 40 days after the claim was filed (Harris v State of New York, 190 Misc 2d 463). The same analysis, requiring such affirmative defenses to be raised within 40 days of filing and service of the claim, applies to the instant matter.

Accordingly, that part of Claimant’s motion to strike the second and fifteenth affirmative defenses is granted. As to that part of Claimant’s motion which seeks permission to file a late claim, decision is reserved only in the event of an appeal; if the Defendant does not file a notice of appeal from this decision and order within the period permitted by the CPLR, then that part of the motion shall be considered denied.

As to the cross-motion, the Claimant has consented to the discontinuance of his cause of action under Labor Law §240(1), and has not raised any factual question challenging Defendant’s unrefuted assertion that the cause of action asserting common law negligence and a violation of Labor Law §200 should be dismissed because the State of New York failed to exercise any supervision or control of the project or work which resulted in Claimant’s accident (see Affidavit of Eric Peters, Superintendent of the Town of Hamlin Water Department, appended to the cross-motion). Accordingly, the cross-motion is granted to that extent. Thus, the only remaining cause of action alleges a violation of Labor Law §241(6).

The motion and cross-motion are granted to the extent noted and, except as to the late claim application for which decision is conditionally reserved, are otherwise denied.

The Clerk is directed to serve the parties.

May 23, 2006
Rochester, New York

Judge of the Court of Claims

  1. [1]“Service by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general” (Court of Claims Act §11[a][i]). While the date of completion of service is not clearly specified, for purposes of this decision, December 1, 2005 will be utilized as both the date of filing and of service.