New York State Court of Claims

New York State Court of Claims

CIT TECHNOLOGY v. THE STATE OF NEW YORK, #2007-014-515, Claim No. 111619, Motion No. M-71578


Claimant’s motion to amend the claim to add specific dates of accrual is granted.

Case Information

1 1.The Court has amended the caption to reflect that the proper defendant is the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has amended the caption to reflect that the proper defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

S. Michael Nadel
Claimant’s attorney:
Helfand & HelfandBy Robert H. Brown
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy Assistant Attorney General Gwendolyn Hatcher
Third-party defendant’s attorney:

Signature date:
October 29, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the claimant’s motion to amend the claim and to strike the First and Seventh Affirmative Defenses in the Verified Answer: Notice of Motion, Affidavit in Support and Exhibits annexed; Affirmation in Opposition and Exhibit annexed; Affirmation in Reply.

The claimant seeks permission to amend the claim, which is for breach of contract, to include dates of accrual, and to strike the defendant’s affirmative defenses that the Court lacks jurisdiction on the grounds that the claim is untimely (First Affirmative Defense), and that it does not include an accrual date (Seventh Affirmative Defense).

A defense on the ground of untimeliness must be raised with particularity, or it is waived (Court of Claims Act section 11 [c]). In order to be raised with particularity the defense must state “the action that would have been proper” (Sinacore v State of New York, 176 Misc 2d 1, 9). The First Affirmative Defense alleges that the claim is untimely because it was not served or filed “in accordance with Court of Claims Act sections 10 and 11, which requires service and filing of the claim, or service of the notice of intention, within ninety days of the accrual date, . . .” The Answer misstates the applicable provision of law; the claim is clearly one for breach of contract, so the time within which it must have been served and filed is six months from its accrual (Court of Claims Act section 10[ 4]), not 90 days. The defense is not stated with the particularity required by section 11 (c), as a result of which any defense of timeliness has been waived, so that the claimant’s motion to strike the First Affirmative Defense is granted.

The defendant’s Seventh Affirmative Defense, which asserts that “the claim fails to allege a date of accrual” is predicated upon the requirement in Court of Claims Act section 11 (b) that: “The claim shall state the time when . . . such claim arose, . . .” While it is the case that the claim does not specifically state a date on which it accrued, the claim does indicate when the breach of contract is alleged to have arisen, to the extent that the claim, which is dated November 11, 2005 states (Paragraph 4): “This claim continues to accrue as the defendant has ceased making payments towards its on-going payment obligations to claimant under the subject leases and continues to retain and use the leased equipment without compensation to claimant.” It is apparent from a reading of the claim that it states that the claim is accruing as of the date of its being written. The claim contains that which section 11 (b) requires.

The defendant’s sole opposition to the claimant’s motion to amend the claim to include specific accrual dates (of November 1, 2005 and November 3, 2005) with respect to each of the two leases at issue, is based upon its contention that the claim does not initially satisfy the requirements of section 11 (b) because it does not state the time when it arose, which the Court has found to be without merit. Having satisfied the requirements of section 11 (b), “[a] claim may always be amended at a later time, if necessary” (Kolnacki v State of New York, 8 NY3d 277, 281).

In accordance with the foregoing, the claimant’s motion is granted; the claimant shall serve and file the amended claim with 45 days of the date of this Order.

October 29, 2007
New York, New York

Judge of the Court of Claims