New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2008-029-050, Claim No. 110745, Motion No. M-75580


Dismissal motion based on regular mail service granted. Court notes unfortunate practice of burying a meritorious affirmative defense amid multiple frivolous defenses.

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:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Elyse J. Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 14, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves to dismiss the claim for lack of jurisdiction arising from service of the claim by regular mail. [1]

The underlying claim, alleging that claimant cut her thumb on a broken mop wringer at Bedford Hills Correctional Facility on February 10, 2005, was filed April 7, 2005. In an order filed April 28, 2005, presiding Judge Sise denied claimant’s application for a reduction of the statutory filing fee and directed her to pay the $50.00 fee within 120 days. Defendant’s answer was filed May 25, 2005. Included among nine affirmative defenses, five of which were patently inapplicable to this matter, [2] was the eighth affirmative defense asserting that the court lacks jurisdiction over the claim since it was served by regular mail rather than in accordance with Court of Claims Act section 11.

The file reflects no further activity until July 8, 2008 when the parties were notified that the claim was scheduled for trial on October 21, 2008. In motion papers dated September 26, 2008 and returnable October 8, 2008, defendant requests dismissal of the claim for lack of jurisdiction.

The Court of Claims Act was amended in 1990 to add §11(c), requiring that a defense based on the time or manner of service requirements of the Act be set forth in either a pre-answer motion to dismiss or in the answer. In support of that amendment, Attorney General Robert Abrams wrote that it was “consistent with the policy of the Claims Bureau,” a policy intended to notify claimants of any technical defect so they can then “try to correct the defect by a motion to late file the claim pursuant to Court of Claims Act §10(6)” (L 1990 Ch 625, Bill Jacket, p 11).

Defendant has complied with the statute by raising the service defect in the answer, although it never submitted a motion to dismiss the claim for that reason until after being notified of a trial date. Claimant failed to move for late filing relief and the time in which to do so expired with the underlying statute of limitations on February 10, 2008. Apparently, claimant did not realize that the eighth affirmative defense, alleging lack of jurisdiction arising from improper service was meritorious.

As was recently written by my colleague Judge Scuccimarra, “[w]hile the Court finds the practice of burying more significant defenses in an answer within a bevy of pro-forma ones, and delaying acting upon such conclusive defenses until the day of trial, an unfortunate practice – especially detrimental to pro se litigants who may be less familiar with the technicalities of practice in the Court of Claims – it is nonetheless generally allowed. Cf. [CPLR] §3211(e).” [3] (Hall v State of New York, UID No. 2008-030-019, July 31, 2008, fn. 12).

Based on the foregoing, the court has no choice but to grant defendant’s motion and dismiss the claim for lack of jurisdiction arising from service by regular mail instead of a method authorized by statute.

October 14, 2008
White Plains, New York

Judge of the Court of Claims

[1].Papers considered: Notice of Motion, Affirmation and Exhibits
[2].For example, the defense that defendant is protected by immunity resulting from discretionary determinations has no place in a personal injury claim alleging that claimant was injured while using a broken mop, nor does the defense that defendant’s employees acted without malice and with reasonable force (the claim does not allege any use of force) or the defense alleging that defendant’s employees acted outside of the scope of their employment. The defense that the claim fails to state the “basis” for the monetary damages sought is patently frivolous, since the claim alleges that claimant cut her finger on the mop and received five stitches.
[3].CPLR 3211(e) was amended in 1996 (L 1996 Ch 501) to provide that a jurisdictional defense based on improper service is waived if a motion to dismiss is not made within 60 days after the defense is raised in the answer. The amendment “was intended to address problems related to jurisdictional defenses included as part of broad ‘boiler plate’ answers” (Diaz v State of New York, 174 Misc 2d 63, 65-66 [Ct Cl, Bell, J. 1997]). Notwithstanding that the 1990 amendment to the Court of Claims Act that added §11(c) was intended to “provide analogous provisions to those presently found in CPLR section 3211(e)” (L 1990 Ch 625, p 5, Memorandum in Support of Sen. Christopher J. Mega), the Legislature did not amend §11(c) when it amended CPLR 3211(e) in 1996, and it is clear that the 60-day requirement of CPLR 3211(e) does not currently apply to Court of Claims actions (Diaz v State of New York, supra.).