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
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
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).
Failure to serve the
claim at all results in a lack of subject matter jurisdiction that is not
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.