New York State Court of Claims

New York State Court of Claims

REID v. THE STATE OF NEW YORK, #2008-044-598, Claim No. 112138, Motion Nos. M-75119, CM-75360


Court denies claimant’s untimely motion for reargument and grants defendant’s cross motion for permission to assert affirmative defense of qualified governmental immunity.

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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 31, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant filed this claim to recover for personal injuries allegedly received when he fell while descending a flight of concrete stairs located at Southport Correctional Facility. The claim alleges that when claimant fell, he was unescorted and was shackled with handcuffs in front which were attached to a waist chain secured by a padlock at his back. The claim further alleges that the stairs were wet at the time. Defendant State of New York (defendant) answered, asserting two affirmative defenses. Neither affirmative defense asserted a claim of governmental immunity.

After discovery was concluded, claimant moved both to limit the issues of fact for trial pursuant to CPLR 3212 (g), and for summary judgment on the issue of liability. Defendant opposed the motion and cross-moved for summary judgment dismissing the claim. The Court denied both claimant’s motion and defendant’s cross motion for summary judgment on the basis that existing questions of fact and issues of credibility required resolution at trial (Reid v State of New York, Ct Cl, Jan. 25, 2008, Schaewe, J., Claim No. 112138, Motion No. M-73429, Cross Motion No. CM-73753 [UID # 2008-044-503]). The Court did not limit the issues of fact for trial. Defendant served claimant with a copy of the Decision and Order on April 25, 2008.[1]

Claimant now moves for reargument pursuant to CPLR 2221 (d). Defendant opposes the motion, and cross-moves for permission to amend the answer to add the affirmative defense of qualified governmental immunity.

During the course of a conference on the claim held on May 22, 2008, the Court noted that CPLR 2221 (d) (3) requires that a motion to reargue “shall be made within 30 days after service of a copy of the order determining the prior motion and written notice of its entry,” and that such time had nearly expired as of that date.[2] Despite that warning, however, this motion to reargue was mailed to the Attorney General’s Office on June 17, 2008, 18 days after the expiration of the statutorily-mandated period within which to make such a motion. Accordingly, claimant’s motion was not timely, and thus must be denied.[3]

Moreover, claimant’s motion is essentially an attempt to reargue issues decided in the Decision and Order. A motion for leave to reargue is not designed to afford an unsuccessful party another opportunity to “argue once again the very [issues] previously decided” (Foley v Roche, 68 AD2d 558, 567 [1979]). Reargument would not be available in this case even if the motion had been timely.

The Court now turns to defendant’s cross motion for leave to amend its answer to assert the affirmative defense of governmental immunity. Defendant accurately states that failure by the State to assert governmental immunity in its answer cannot act as a waiver.[5] Any suit brought in the Court of Claims can be done so only due to the State’s initial, qualified waiver of its sovereign immunity with respect to actions normally associated with private individuals and corporations (Court of Claims Act §8; see Arteaga v State of New York, 72 NY2d 212 [1988]). Of course, the State has not waived its immunity with regard to actions which are sovereign in nature, such as those involving the exercise of discretion or judgment of a quasi-judicial nature (Arteaga v State of New York, supra). The question of whether sovereign immunity has been waived in a particular instance has thus been equated to subject matter jurisdiction in the Court of Claims (Topal v State of New York, 263 AD2d 414, 415-416 [1999]; Lublin v State of New York, 135 Misc. 2d 419, 420-421 [1987], affd 135 AD2d 1155 [1987], lv denied 71 NY2d 802 [1988]).

Claimant counters with the argument that “in many areas of State action no immunity claim can be made,”[6] citing various types of claims against the State, such as unlawful imprisonment or ministerial failures. This is so, however, only because the State has granted that initial waiver, meanwhile retaining immunity for various other types of claims. Without that initial waiver, this Court simply has no authority to hear a claim. Thus, as aptly stated in Libous v State of New York (supra at 3), “[b]ecause the issue of [sovereign] immunity is present from the very outset in any Court of Claims action, litigants can hardly claim surprise if and when the State seeks protection of that immunity.” As that case further states: “Consequently, while it is common practice, and good practice, for a defendant to raise governmental immunity as an affirmative defense . . . failure to do so does not and cannot act as a waiver” (id.).

Claimant also suggests that the Court might consider sanctioning defendant for failing to assert immunity as an affirmative defense, comparing it to a discovery default.[7] However, the issue of subject matter jurisdiction need not be asserted as an affirmative defense. It is not one of the grounds deemed waived unless raised by motion or in a responsive pleading (CPLR 3211 [e]), and may be raised at any time during the course of the proceedings, even by the Court, sua sponte (see Signature Health Ctr., LLC v State of New York, 42 AD3d 678 [2007]; Gelin v Lehman Coll., 254 AD2d 119 [1998], lv denied 92 NY2d 818 [1999]). Any attempt by this Court to sanction defendant by prohibiting such a defense would be outside the Court’s authority.

Claimant, whose counsel is an able and frequent practitioner in the Court of Claims, cannot legitimately claim that the assertion of this potentially meritorious defense comes as a surprise. While technically the amendment of the pleadings to assert the defense of sovereign immunity is not necessary, given the above discussion, the Court hereby grants defendant’s motion in the interest of clarifying the proceedings.

In conclusion, claimant’s motion for reargument is denied as untimely. Defendant’s cross motion for leave to amend the answer is granted.

December 31, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion and defendant’s cross motion:

1) Notice of Motion filed on June 17, 2008; Affirmation of Gary E. Divis, Esq., dated June 17, 2008, and attached exhibits.

2) Notice of Cross Motion filed August 11, 2008; Affirmation of James E. Shoemaker, AAG, dated August 6, 2008, and attached Exhibits A and B.

3) Reply Affirmation of Gary E. Divis, Esq., filed on August 21, 2008.

Filed papers: Claim filed on March 27, 2006; Verified Answer filed on April 27, 2006.

[1]. Affirmation of Assistant Attorney General (AAG) James E. Shoemaker, Esq., in Opposition of [sic] Motion to Reargue and in Support of Cross Motion to Amend Defendant’s Answer ¶ 3, Exhibit A.
[2]. Because service of the Decision and Order with notice of entry was accomplished by mail, claimant was entitled to an additional five days in which to make this motion to reargue (see CPLR 2103 [b] [2]). Accordingly, the motion for reargument was required to be made on or before May 30, 2008.
[3]. The Court acknowledges that, as claimant points out, its prior Decision and Order contained an erroneous statement, as follows: “As defendant correctly notes, claimant did not specifically raise this policy [of requiring an inmate to negotiate a staircase without escort and while shackled] as a basis for liability in the claim as filed and served, and defendant therefore appropriately did not raise governmental immunity as an affirmative defense in its verified answer” (Reid v State of New York, supra at 8). However, it is clear that the statement would not form the basis for a successful motion for reargument even if such a motion had been timely, because any misapprehension by the Court was irrelevant to the actual issue at hand and the Court did not overlook any significant facts, nor did it misapply the law (see Matter of Smith v Town of Plattekill, 274 AD2d 900 [2000]).

[4]. Claimant’s argument that the Court should have limited the facts for trial pursuant to CPLR 3212 (g) would also fail if made on a timely motion to reargue. A determination by the Court to limit the facts is discretionary on the part of the Court (“the court . . . shall, if practicable, ascertain what facts are not in dispute or are incontrovertible” [emphasis supplied]), and there was no showing that the Court abused its discretion in any way.
Additionally, claimant’s argument that there must be deemed to be no factual issues where both parties move for summary judgment (citing Kouros v State of New York, Ct Cl, June 6, 2000, Hanifin, J., Claim No. 98994, Motion No. M-60503, Cross Motion No. CM-60664 [UID # 2000-004-504], affd 288 AD2d 566 [2001]) is a patently inaccurate statement, taken out of context, and was applicable only to that case. Obviously, if issues of fact are present, the Court must deny summary judgment (see e.g. Diehr v Association for Retarded Citizens of Chemung County, 233 AD2d 818 [1996]).
[5]. Affirmation of AAG James E. Shoemaker, Esq., in Opposition of [sic] Motion to Reargue and in Support of Cross Motion to Amend Defendant’s Answer, ¶ 9, citing Libous v State of New York, Ct Cl, Dec. 31, 2003, Hard, J., Claim No. 102281, Motion No. M-67246, Cross Motion No. CM-67258 [UID # 2003-032-135]).
[6]. Claimant’s Motion to Reargue, Letter of Gary E. Divis, Esq. dated May 18, 2008, p 6.
[7]. Claimant’s Motion to Reargue, Letter of Gary E. Divis, Esq. dated May 18, 2008, p 7.