New York State Court of Claims

New York State Court of Claims

HANKINS v. STATE OF NEW YORK, #2008-040-010, Claim No. 111180, Motion No. M-74379


Synopsis


State’s motion to dismiss for failure to comply with serve and filing requirements of Court of Claims Act §§ 10 and 11 denied as Court finds Affirmative Defense not raised with particularity as required by Court of Claims Act § 11(c).

Case Information

UID:
2008-040-010
Claimant(s):
STEVEN HANKINS
Claimant short name:
HANKINS
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111180
Motion number(s):
M-74379
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
Steven Hankins, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Michael W. Friedman, Esq., AAG
Third-party defendant’s attorney:

Signature date:
February 25, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, the State’s motion to dismiss the Claim based upon Claimant’s failure to comply with the service and filing requirements of Court of Claims Act §§ 10 and 11 is denied.

Pursuant to Court of Claims Act § 10(3), the provisions applicable to personal injury actions caused by negligence or unintentional torts, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim. In either case, Claimant was required to initiate action within 90 days of the Claim’s accrual.

Court of Claims Act § 10 is more than a statute of limitations; it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973], affd 37 NY2d 735 [1975]; Antoine v State of New York, 103 Misc 2d 664 [Ct Cl 1980]). Failure to timely comply with the statutory filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Buckles v State of New York, 221 NY 418 [1917]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], lv denied 64 NY2d 607 [1985]).

Section 11(a) of the Court of Claims Act requires that the Attorney General be served either personally or by certified mail, return receipt requested, within the applicable limitations period (90 days in this instance). It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 11 gives rise to a jurisdictional defect (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]).

Pursuant to Court of Claims Act § 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense either by motion to dismiss prior to service of the responsive pleading, or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).

Defendant received a Notice of Intention to File a Claim by certified mail, return receipt requested on June 8, 2005 (see Ex. A attached to Motion). Claimant asserts in the Notice of Intention that the Claim arose “on or about 3/20-28/05 at Activity Bld # 2” at Franklin Correctional Facility in Malone, New York. Claimant asserts that when he dismounted an exercise chin-up bar he landed on weights that had been holding the bar in place and twisted his ankle. After a two-month delay, he learned that his ankle was broken. Claimant thereafter filed a Claim with the Clerk of the Court, and served it upon the Defendant on July 25, 2005 (see Ex. B attached to Motion), stating that the incident took place on February 15, 2005. The Claim asserts that Defendant was negligent in its installation of the chin-up bar and that Claimant did not receive proper medical care at the correctional facility.

Defendant, in its Answer served on August 31, 2005, stated its first defense as follows:
The 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.
Thus, the question posed is whether Defendant raised its affirmative defense with sufficient particularity to preserve it pursuant to Court of Claims Act § 11(c).

Claimant has not submitted any papers in opposition to the State’s Motion.

Judge Leonard Silverman of this Court set forth a concise summary of what “particularity” must mean in this situation in Fowles v State of New York (152 Misc 2d 837, 840 [Ct Cl 1991]):
For a statement to be sufficiently particular it must give notice of the transaction or occurrence intended to be proven and the material elements of it (CPLR 3013; Meese v Miller, 79 AD2d 237). The primary purpose of a pleading is to advise the adverse party of a claim or defense (Lane v Mercury Record Corp., 21 AD2d 602, affd 18 NY2d 889). The pleading must provide notice and not be just a label (Huntington Utils. Fuel Corp. v McLoughlin, 45 Misc 2d 79). A pleading must allege facts (Melito v Interboro-Mutual Indem. Ins. Co., 73 AD2d 819). The mere allegation of a legal conclusion in an affirmative defense is insufficient (Griffo v Tauriello, 23 Misc 2d 430).
Judge Silverman continued: “[a] claimant should not be left in a quandary to determine what an affirmative defense is referring to” (id.). In the Court’s view, Defendant has failed to allege sufficient facts to provide notice to Claimant as to how Claimant failed to comply with the filing and service requirements of Court of Claims Act §§ 10(3) and 11(a).

The language quoted above from Defendant’s Answer, raised in the appropriate pleading, states the nature of the defense, the statutes relied upon and sets forth the required time period. It fails, however, to state the claimed defect with the requisite particularity to satisfy Court of Claims Act § 11(c). The affirmative defense states only that the Claim was not timely filed or served within the 90-day limitation period. The statement, by itself, does not provide notice to Claimant of the claimed defect. Claimant served a Notice of Intention, so he believed his time to serve and file a claim was extended. Thus, the statement that the Claim was not served and filed within 90 days of accrual did not put him on notice that the Notice of Intention was not timely served because it contained the wrong date of the Claim’s accrual. Defendant did not give notice of the transaction or occurrence intended to be proved, i.e., that the Notice of Intention was not timely served in accordance with Court of Claims Act §§ 10(3) and 11(a). In rejecting the affirmative defense asserted in Fowles, Judge Silverman noted that “[t]here is nothing in the Answer which indicates whether the defense is alluding to the notice of intention or the claim” (among other defects) (Fowles v State of New York, 152 Misc 2d 837, supra at 840). In contrast to the Answer, the State’s motion papers provided more specificity in some respects, but omitted other information contained in the Answer. Assistant Attorney General Friedman stated at paragraph 8 of his Affirmation:
8. The failure of the claimant to serve either a Notice of Intention or the Claim on a timely basis pursuant to the requirements of th [sic] Court of Claims Act is a jurisdictional defect which deprives the Court of subject jurisdiction of the claim and personal jurisdiction over the State.
The Court notes that the affirmative defense might have possessed the requisite particularity to meet the requirements of § 11(c) had the statements included in the Affirmation been included along with those asserted in the Answer (see Villa v State of New York, 228 AD2d 930, 931 [3d Dept 1996], lv denied 88 NY2d 815 [1996] [statement that Court lacked jurisdiction over matter “since no notice of intention was served on the Attorney General within 90 days of accrual” found legally sufficient]; Czynski v State of New York, 16 Misc 3d 465 [Ct Cl 2007] [statement that Court lacked jurisdiction over claim “since no notice of intention or claim was served upon the Attorney General within 90 days of the accrual of the causes of action as required by Sections 10(3), (3-b) and 11(a) of the Court of Claims Act” found to have requisite particularity]; Goudie v State of New York, Claim No. 97194, Motion Nos. M-63375, CM-63422, dated May 10, 2001, Mignano, J. [UID No. 2001-029-073], affd 291 AD2d 432 [2d Dept 2002], lv denied 98 NY2d 602 [2002] [statement that “Court lacks jurisdiction ... due to claimant’s failure to timely serve the notice of intention and the claim ... in accordance with Court of Claims Act Sections 10 and 11, which requires [sic] service and filing of the notice of intention or claim within ninety days of the accrual date” found sufficient]; Ramirez v State of New York, 171 Misc 2d 677, 679 [Ct Cl 1997] [statement that “Claimant served neither a notice of intention nor the claim on the State within ninety (90) days of the claim’s alleged accrual, as required by Court of Claims Act § 10(3)” found sufficient]).

In this instance, however, the Court finds and concludes that the affirmative defense was not raised with the particularity required by Court of Claims Act § 11(c), did not preserve the defense of lack of jurisdiction, and, thus, that the defense of lack of personal jurisdiction has been waived. Accordingly, the State’s motion is denied.


February 25, 2008
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered by the Court on Defendant’s motion to dismiss:

Papers Numbered

Notice of Motion, Affirmation
in Support and Exhibits Attached 1


Filed Papers: Claim, Answer