New York State Court of Claims

New York State Court of Claims

JOHNSON v. NEW YORK STATE and THE NEW YORK STATE THRUWAY AUTHORITY, #2008-032-133, Claim No. 111931, Motion No. M-75049


Case Information

KATHLEEN JOHNSON as Administratrix of the Estate of Amy Johnson
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 Offices of Grace & GraceBy: Michael J. Grace, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Michael W. Friedman and Michele M. Walls, Assistant Attorneys General, Of Counsel
Third-party defendant’s attorney:

Signature date:
December 22, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant brings a motion to dismiss Claim No. 111931 on the grounds that the Court lacks personal jurisdiction over the New York State Thruway Authority and subject matter jurisdiction over the claim. Claimant opposes the motion on the basis that defendant has waived its jurisdictional objections, if any.

The underlying claim arises out of a motor vehicle accident which occurred on February 8, 2004. Claimant's decedent was a passenger in a motor vehicle being operated by a non-party, when the motor vehicle was caused to leave the travel way of the New York State Thruway and strike an unprotected rock median. Claimant alleges that as a result of the New York State Thruway Authority's failure to properly and reasonably maintain its highway, the motor vehicle spun out and flipped over, causing claimant's decedent to sustain serious and lethal personal injuries.

The claim was filed with the Court of Claims and served on the New York State Attorney General on February 2, 2006. Defendant served a Verified Answer to said Claim on March 13, 2006. Defendant now moves this Court for an Order dismissing the claim on the basis that claimant failed to serve the claim on the New York State Thruway Authority, as required by Court of Claims Act § 11(a)(ii), and that the time within which claimant must effect service upon the New York State Thruway Authority has now expired. Claimant opposes the motion on the basis that defendant did not sufficiently and adequately plead its jurisdictional defenses and that it therefore has waived the same.

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.
In the present case, defendant has served a Verified Answer. Therefore, it is necessary to determine whether defendant has raised any jurisdictional objections in said Verified Answer and if so, whether said jurisdictional objections were pled with sufficient particularity.

Defendant sets forth three affirmative defenses in its Verified Answer. The first and third of said defenses address the issue of jurisdiction. The first one states
[t]he claim was not filed or served within the 90-day time limitation as prescribed by Section 10(3) and Section 11 of the Court of Claims Act. Accordingly, the Court lacks subject matter jurisdiction of the claim and personal jurisdiction over defendant, the State of New York
(see defendant's Verified Answer at paragraph
). The third one states
[t]he Court lacks jurisdiction of the defendant, the New York State Thruway Authority
(see id. at paragraph

Affirmative defenses are generally subject to the same basic pleading rules that apply to a claim (Siegel, op. cit., C3018:19, p 160; see CPLR § 3013). Accordingly, they shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense (CPLR § 3013). To be raised with particularity, however, a defense must state the factual elements to be proven, not merely legal conclusions (see Rister v City University of New York, 20 Misc 3d 195 [Ct Cl 2008]; Sinacore v State of New York, 176 Misc 2d 1 [Ct Cl 1998]). In Garcia v State of New York (Claim No. 84965, Motion No. M-48313, filed Sept. 24, 1993, Benza, J., opn At 4), which addressed the issue of service, the Court held that defendant's statement that neither the notice of intention nor the claim
was served in a manner complying with Court of Claims Act §11(a)
was rejected as too imprecise, because it
failed to allege sufficient facts to provide notice to claimant as to how claimant failed to comply with the service requirements.

Defendant’s first affirmative defense references the State of New York, not the New York State Thruway Authority. Accordingly, it is clearly not alleging facts sufficient to provide notice to the claimant that the claim has not been served on the New York State Thruway Authority.

Defendant’s third affirmative defense states merely that the Court lacks jurisdiction over the New York State Thruway Authority. It does not state how, why or in what manner the Court lacks such jurisdiction. By not pleading its jurisdictional defenses with particularity, defendant has waived the same. Accordingly, defendant’s motion to dismiss must be and is hereby denied.

December 22, 2008
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion dated May 30, 2008 and Affirmation of Michael W. Friedman, Esq., in Support of Defendant's Motion to Dismiss with Exhibits A – B;

2. Affirmation in Opposition of Michael J. Grace, Esq. dated September 5, 2008;

3. Reply Affirmation of Michele M. Walls, Esq. in Support of Defendant's Motion to Dismiss dated September 10, 2008 with Exhibits C - D.