Defendant has brought this motion seeking to dismiss the claim for lack of
jurisdiction, based upon a failure to comply with §§ 10 and 11 of the
Court of Claims Act. Specifically, defendant alleges that the claimant failed
to serve his claim on the Attorney General as prescribed by § 11.
The following papers were considered by the Court in connection with this
Notice of Motion to Dismiss Claim, Affirmation, with Exhibits (including
Affidavit of Janet A. Barringer) 1,2
Filed Papers: Claim, Verified Answer, Defendant’s First Set of
Claimant has not submitted any response to this motion.
In support of this motion, defendant has submitted the Affidavit of Janet A.
Barringer, Senior Clerk in the Albany Office of the Attorney General of the
State of New York (Exhibit 1 to Items 1,2), sworn to on June 9, 2008,
averring that after a thorough search of the files maintained by the Attorney
General, she did not find any record of a claim having been served upon the
Attorney General. Additionally, the Court has reviewed the claim file
maintained by the Clerk of the Court of Claims and finds that claimant has
failed to file any Affidavit of Service with regard to his claim.
Despite the Affidavit of Ms. Barringer, however, this review of the
Court’s file also reveals that a Verified Answer and a set of
Interrogatories were filed with the Clerk of the Court on December 23, 2002.
The existence of an answer to this claim indicates to the Court that there has
been service of the claim on the defendant in some manner, even though there is
no affidavit or other direct evidence of service.
Since issue has been joined in this particular matter, the jurisdictional
defenses set forth in Court of Claims Act § 11(c) must be considered.
Despite the fact that claimant has failed to refute the allegations of
non-service by the defendant, and has failed to offer any proof of service,
§ 11(c) dictates that when the defendant fails to raise a defect in the
timing or manner of service either prior to or in its answer, the defense is
waived and the Court shall not dismiss the claim for such failure. Although the
defendant’s answer in this matter contains ten affirmative defenses, none
of them allege a defect in service.
The Court also notes that the defendant has now raised the issue of non-service
in 2008 for the first time, almost six years after the claim was filed and
answered. This is exactly the type of situation which the Legislature hoped to
cure when it enacted § 11(c) in 1990. One of the concerns raised at that
time was the practice of certain Assistant Attorney Generals “playing
possum”, i.e., waiting until the statute of limitations had passed before
raising improper or untimely service, especially in the cases of pro se
litigants. Such practice has been characterized as an “unfair
surprise” (Sinacore v State of New York, 176 Misc 2d 1, 5-7).
While not suggesting that the Assistant Attorney General handling this claim has
engaged in such practice, the end result to claimant would unfortunately be the
same if this motion were to be granted.
Accordingly, based on the foregoing, the Court finds that defendant has waived
the defense of non-service as a basis for dismissal of the claim.
Therefore, it is
ORDERED, that Motion No. M-75155 is hereby DENIED.