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,
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.
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
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 ). 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.
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 ). 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 ;
Lublin v State of New York
, 135 Misc. 2d 419, 420-421 , affd
135 AD2d 1155 , lv denied
71 NY2d 802 ).
Claimant counters with the argument that “in many areas of State action
no immunity claim can be made,”
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
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
Claimant also suggests that the Court might consider sanctioning defendant for
failing to assert immunity as an affirmative defense, comparing it to a
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 ; Gelin v Lehman
254 AD2d 119 , lv denied
92 NY2d 818 ). 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.
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
. 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
, 274 AD2d 900 ).
. 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 ) 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 ).