New York State Court of Claims

New York State Court of Claims

ANTONETTI v. THE STATE OF NEW YORK, #2009-030-527, , Motion No. M-76385


Unopposed late claim motion denied as unnecessary. Motion served simultaneously with claim by certified mail, return receipt requested, which was filed as claim number 116454. No answer served. No motion to dismiss. Defendant has waived verification defense as to notice of intention timely served by proper means, and as to untimeliness of the claim.

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:
Third-party defendant’s attorney:

Signature date:
April 29, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for permission to serve and file a late claim brought pursuant to Court of Claims Act §10(6):
  1. Motion for Permission to File a Late Claim by Jose Antonetti, Claimant
  2. Claim Number 116454 filed February 20, 2009

Jose Antonetti seeks permission to serve and file a late claim alleging that the State negligently allowed a dangerous condition to exist in a stairwell at Downstate Correctional Facility [Downstate], where claimant fell and suffered injury on August 26, 2008. The motion is unopposed. Simultaneously with his motion papers, claimant submitted claim number 116454, that was filed in the clerk’s office on February 20, 2009, and served on the Attorney General’s Office at approximately the same time. No answer has apparently been served or filed. The affidavit of service included with the claim and the motion papers indicates that the Attorney General’s Office was served with the claim and the motion papers by certified mail, return receipt requested on an unspecified date, however claimant’s signature on the Affidavit of Service was notarized on February 13, 2009, and the court’s copies of same were received on February 20, 2009, suggesting receipt by the Attorney General’s Office at the same time.

In the present motion papers and in the filed claim claimant avers that he served a notice of intention to file a claim upon the Attorney General’s Office on November 17, 2008 by certified mail, return receipt requested that was returned by that office “as a nullity.” [Motion for Permission to File a Late Claim, ¶2; Claim Number 116454 ¶14]. Thereafter, he served another, verified notice of intention on or about November 21, 2008 by regular mail. [Id.].

A notice of intention to file a claim and the claim must be verified “. . . in the same manner as a complaint in an action in the supreme court” in accordance with Court of Claims Act §11 (b). A defendant receiving an unverified pleading - which for this purpose a notice of intention is - must reject it and return as a nullity with due diligence pursuant to Civil Practice Law and Rules §3022, or else waive any defense based upon a lack of verification. Lepkowski v State of New York, 1 NY3d 201 (2003). When it is a notice of intention that is the rejected pleading, the effect is upon the timeliness of any subsequently served and filed claim.

Court of Claims Act §11(a) provides that the claim must be served personally or by certified mail, return receipt requested, upon the attorney general within the times prescribed in Court of Claims Act §10; and that service is complete when it is received in the Attorney General’s Office. Court of Claims Act §11(a)(i). Here, the time period within which to serve either a notice of intention or a claim would be ninety (90) days from its accrual on August 26, 2008. Court of Claims Act §10(3). A failure to serve the claim during the time period and in the manner required results in a lack of personal jurisdiction, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. In that case, the defense is waived. Court of Claims Act §11(c).[1] Failure to serve the claim at all results in a lack of subject matter jurisdiction that is not waiveable.

Since the defendant has neither opposed the present motion or, as of this writing, served and filed an answer to the filed claim[2], only the claimant’s uncontradicted representations are before the court. Claimant has acknowledged that he served the second notice intention by regular mail, meaning that such service would not be effective, generally, to extend the time within which to subsequently serve and file a claim.[3] Nonetheless, the defendant has waived any defense as to verification and the ultimate untimeliness of the claim, and the present motion is unnecessary, since no timely motion to dismiss claim number 116454 has been made, nor have such defenses been interposed with particularity in a timely served answer.

Claim number 116454 is still before the court, and defendant has not answered, nor has defendant sought relief pursuant to Civil Practice Law and Rules §3012(d) seeking an extension of the time within which to answer.[4] The Court of Claims Act, however, prohibits the entry of a default judgment against the State. See Court of Claims Act §12(1).[5] See Mabry v State of New York, UID # 2007-029-050, Claim No. 110024, Motion No. M-74215 (Mignano, J., November 28, 2007); Gibson v State of New York, UID # 2000-017-611, Claim No. 101212, Motion No. M-61208 (O’Rourke, J., December 20, 2000). The claim must still be tried despite such default in answering, and claimant will have to submit such evidence as will establish a prima facie case of liability. At any trial, defendant will be precluded from offering evidence as to liability, but will be allowed to cross-examine claimant’s witnesses. With regard to damages, no such prohibition on the defendant’s presentation of evidence obtains.

Based on the foregoing, the motion for late claim relief is denied. As noted, claim number 116454 is still before the court and the parties are directed to proceed accordingly.

April 29, 2009
White Plains, New York

Judge of the Court of Claims

[1]. “Any 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[11(a)], or (iii) with verification requirements as set forth in...[11(b)] and [Civil Practice Law and Rules 3022] 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.”
[2]. An answer to a claim served on or about February 20, 2009 should have been served and filed on or about April 1, 2009, that is, within forty (40) days of service of the claim. See 22 NYCRR §206.7(a).
By the court’s calculations, had the second notice of intention been served by the proper method (certified mail, return receipt requested), it was served within ninety (90) days of the claim’s accrual as well, and the claim was thereafter served well within the additional two (2) years from accrual allowed by Court of Claims Act §10(3) for a claim asserting negligence related personal injury.
[4]. Pursuant to Civil Practice Law and Rules§3012 (d), the court may extend the defendant’s time to answer or may compel the claimant’s acceptance of an answer “upon such terms as may be just and upon a showing of reasonable excuse for delay or default.” Unless the time frame has been minimal, the default was not wilful, and claimant was not prejudiced, the defendant would generally need to establish reasonable excuse for the default and a meritorious defense to the action.
[5]. Court of Claims Act § 12(1) provides in pertinent part: “In no case shall any liability be implied against the state. No judgment shall be granted on any claim against the state except upon such legal evidence as would establish liability against an individual or corporation in a court of law or equity.”