New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2008-030-552, Claim No. 114923, Motion Nos. M-75127, CM-75285


Defendant’s cross-motion to dismiss granted; inmate claimants motion to strike defenses denied. Inadequate medical care alleged. Claimant did not establish that he timely served the claim or a notice of intention upon the Attorney General's office within ninety (90) days of accrual. Defendant raised the jurisdictional issue both in its answer and in the cross-motion.

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:
August 20, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on the cross-motions filed herein:

1,2 Notice of Motion to Strike Defendant’s Affirmative Defenses; Affidavit in Support Strike Defendant’s Affirmative Defenses by Christopher Thomas, Claimant

3-5 Notice of Cross-Motion; Affirmation by Dewey Lee, Assistant Attorney General and attached papers; Letter to Court dated August 12, 2008 correcting typographical errors

6,7 Filed papers: Claim, Answer

Christopher Thomas alleges in his claim that defendant’s agents at Green Haven Correctional Facility where he was incarcerated denied him timely and adequate medical care. More specifically, Mr. Thomas alleges that on or about June 28, 29 and 30, 2006 he was denied the use of his albutol inhaler - prescribed for an asthma condition - and suffered an asthma attack as a result that was so severe, it warranted his removal to the facility hospital, and caused him extreme pain for three (3) days. He alleges that as a result he has had to be subjected to additional medication and treatment, and has suffered additional damage to his lungs.

In its answer, in addition to general denials, the defendant asserts three defenses, including claimant’s own culpable conduct, in the form of contributory negligence and assumption of risk; absolute and qualified immunity, and a lack of personal and subject matter jurisdiction premised on a failure to timely serve and file the claim.

According to an affidavit of service filed with the claim, the Attorney General’s Office was served with the claim by certified mail on or about February 28, 2008. [Claim No. 114923]. The claim was filed in the Office of the Chief Clerk of the Court of Claims on March 3, 2008. [Id.]. As set forth in the answer and in the papers submitted by the defendant, the claim was received by the Attorney General’s Office on March 3, 2008. [Verified Answer, ¶4; Affirmation by Dewey Lee dated July 23, 2008, ¶4; Letter to Court dated August 12, 2008]. There is no indication that any notice of intention had been served upon the Office of the Attorney General within ninety (90) days of accrual of the claim in June 2006. See Court of Claims Act §10(3).

A defense is raised in an answer to provide adequate notice to the claimant of issues of law or fact that the defendant may raise at trial or in later motion practice. Cipriano v City of New York, 96 AD2d 817 (2d Dept 1983). Indeed, Civil Practice Law and Rules §3018(b), concerning responsive pleadings, provides in pertinent part that a “. . . party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading such as . . . collateral estoppel, culpable conduct . . . or statute of limitation. The application of this subdivision shall not be confined to the instances enumerated.”

A motion to dismiss such defenses may be made on the ground that “. . . a defense is not stated or has no merit.” Civil Practice Law and Rules §3211(b). Claimant has not shown how the defenses asserted in the answer lack merit or are otherwise deficient. More significantly, however, the defendant’s cross-motion to dismiss the claim is granted, rendering claimant’s motion to strike defenses moot.

Court of Claims Act §11(a) provides that the claim must be served personally or by certified mail, return receipt requested, upon the attorney general within the times prescribed in Court of Claims Act §10; and that service is complete when it is received in the Attorney General’s Office. Court of Claims Act §11(a)(i). A failure to serve the claim during the time period and in the manner required results in a lack of personal jurisdiction, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. In that case, the defense is waived. Court of Claims Act §11(c).[1] Failure to serve the claim at all results in a lack of subject matter jurisdiction that is not waiveable.

Court of Claims Act § 10(3) requires that a claim alleging inadequate medical care must be served on defendant within ninety (90) days of its accrual. The latest accrual date attested to in the verified claim herein is June 30, 2006, meaning that any claim concerning the alleged failure to provide claimant with a prescribed device should have been served and filed on or before September 28, 2006. As noted above, no notice of intention to file a claim appears to have been served upon the defendant within ninety (90) days of accrual, that might have extended the time within which to serve and file a claim to within two (2) years of its accrual. The claim herein - served on the defendant on March 3, 2008 - is untimely.

Here, the claimant has not established that he timely served the claim upon the Attorney General as required, or that he served a notice of intention upon the Attorney General’s Office within ninety (90) days of accrual of the claim, and the defendant has raised the jurisdictional issue both in its answer and in this cross-motion. Accordingly, claimant’s motion to strike defenses [M-75127] is denied as moot; defendant’s cross-motion to dismiss [CM-75285] is in all respects granted, and Claim Number 114923 is hereby dismissed in its entirety.

August 20, 2008
White Plains, New York

Judge of the Court of Claims

[1]. “Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in . . . [11(a)], or (iii) the verification requirements as set forth in . . . [11(b)] and [Civil Practice Law and Rules 3022] is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.”