Defendant moves to dismiss the claim for lack of jurisdiction arising from
service of the claim by regular mail. 
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, 
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.
[CPLR] §3211(e).” 
(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.
.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.