New York State Court of Claims

New York State Court of Claims

ARCIOLA v. THE STATE OF NEW YORK, #2008-032-132, Claim No. 114824, Motion No. M-75337


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:
Law Office of Richard L. Giampa, Esq., P.C.By: Michael J. Ryan, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Kent B. Sprotbery, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
December 22, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves pursuant to CPLR 3211, for dismissal of Claim No. 114824, in which claimant alleges acts of medical malpractice and medical negligence while he was an inmate at Shawangunk Correctional Facility. Defendant states, as the basis for its motion, “Claimant’s Motion to Late File Claim was denied.” The Court interprets this to mean that defendant’s motion is based upon claimant’s failure to timely file his claim.

In support of its motion, defendant argues that this Court should dismiss the pending claim “consistent with this Court’s July 8, 2008 Decision and Order denying Claimant’s Motion to Late File.” However, although the basis for each claim is the same, they are separate matters. The Court’s Decision and Order filed on July 8, 2008, addresses claimant’s request for permission to file a new claim. It does not pertain to Claim No. 114824 which had been previously filed, is currently pending, and is the subject of the present motion.

Court of Claims Act § 11(c) states that “[a]ny 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 subdivision a of this section, or (iii) the verification requirements as set forth in subdivision b of this section 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.”

The Uniform Rules for the Court of Claims § 206.07(a) requires service of a responsive pleading be made within 40 days of service of the pleading to which it responds.

Here, Claim No. 114824 was filed on February 13, 2008, and, as set forth in defendant’s Affirmation in Support of Motion to Dismiss, was served upon the New York State Attorney General on April 10, 2008. No Answer has been interposed by Defendant. Accordingly, it would appear that defendant is attempting to make a pre-answer motion to dismiss. However, as set forth above, Court of Claims Act § 11(c) requires that the service of such a motion be made prior to the time to serve a responsive pleading expires, which for this Court is 40 days after service of the pleading to which it responds (see Uniform Rules for the Court of Claims

§ 206.7[a]). As the claim was served on April 10, 2008, defendant’s motion should have been filed on or before May 20, 2008. Since it was not filed until August 1, 2008, any objection or defense based on claimant’s failure to comply with the time limitations has been waived, and defendant’s motion to dismiss based on such time limitations must be denied (see Mabry v State of New York, 18 Misc 3d 1108(A)[2007]; see also Knight v State of New York, 177 Misc 2d 181 [1998]; Mancuso v New York State Thruway Auth., 86 F3d 289 [1996]; Tralongo v State of New York, 161 AD2d 584 [2d Dept 1990]).

In light of the foregoing, defendant’s Motion to Dismiss Claim No. 114824 is denied.

December 22, 2008
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion, dated August 1, 2008, and Affirmation of Kent B. Sprotbery, Esq., in Support of Motion to Dismiss, dated August 1, 2008, along with Exhibit A;

2. Affirmation of Michael J. Ryan, Esq., in Opposition to Defendant’s Motion to Dismiss, dated August 27, 2008, along with Exhibits A - D;

3. Reply Affirmation of Kent B. Sprotbery, Esq., dated September 24, 2008.