Defendant argues that the claim, which alleges intentional conduct, is untimely
because even though a notice of intention was timely served, the claim was not
filed and served within one year of its accrual pursuant to Court of Claims Act
§ 10 (3-b). Defendant also asserts that the Court has no jurisdiction over
claimant’s causes of action asserted pursuant to 42 USC
§ 1983. Further, defendant contends that because claimant has a cause of
action for assault, the causes of action which allege a violation of the State
Constitution are not available.
Conversely, claimant contends that by failing to raise with particularity the
affirmative defense that the filing and service of the claim was untimely under
Court of Claims Act § 11 (c), defendant has waived it.
In an action to recover damages for personal injuries caused by the
intentional tort of an officer or employee of the State, the claim must be filed
with the Clerk of the Court and served upon the Attorney General within 90 days
after the accrual of the claim, unless a notice of intention to file a claim is
served upon the Attorney General within 90 days after the accrual of such claim
(Court of Claims Act § 10 [3-b]). If a notice of intention is timely
served, a claim must thereafter be filed and served within one year after its
This claim accrued on June 17, 2003, when claimant was allegedly assaulted by a
correction officer. It is undisputed that claimant’s pro se notice of
intention served on August 1, 2003 was timely.
Accordingly, claimant had until June 17, 2004 in which to file and serve a
claim. This claim both filed and served on June 16, 2005, thus appears to be
However, as claimant correctly notes, Court of Claims Act § 11 (c)
provides that “[a]ny objection or defense based upon failure to comply
with . . . the time limitations contained in [Court of Claims Act § 10] . .
. 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 order to be sufficiently particular, the defendant must, at
a minimum, indicate that the notice of intention was not timely served or that
the claim was not timely filed or served in accordance with the Court of Claims
Act (see e.g. Rodriguez v State of New York, Ct Cl, June 26, 2007,
Collins, J., Claim No. 113166, Motion No. M-73019, Cross Motion No. CM-73119
[UID # 2007-015-203]; see also Firth v State of New York, 184 Misc 2d
105, 109 , affd 287 AD2d 771 , affd 98 NY2d 365
; Sinacore v State of New York, 176 Misc 2d 1, 9 ).
In addition to the limitations period of Section 10 of the Court of Claims Act,
claimants are also subject to the statute of limitations set forth in CPLR
article 2 (see Trayer v State of New York, 90 AD2d 263 ; Lawyer
v State of New York, Ct Cl, Sept. 6, 2005, Schweitzer, J., Claim No. 109555,
Motion No. M-70377 [UID # 2005-036-101]). Defendant’s first
defense is that “this claim is barred by the expiration of the statute of
limitations period” (Verified Answer, ¶ 5). It is apparent that this
affirmative defense is referring to the one-year statute of limitations
applicable to a cause of action for assault (see CPLR 215 ). Because
the first affirmative defense does not place claimant on notice that the claim
may not have been timely filed or served, defendant has waived any defense that
claimant failed to comply with Court of Claims Act § 10 (3-b) (see
Court of Claims Act 11 [c]). Accordingly, that portion of defendant’s
motion to dismiss the claim as untimely is denied.
However, defendant also seeks dismissal of the causes of action alleging
violations of the Federal and State Constitutions. As defendant correctly
contends, the Court of Claims does not have jurisdiction to consider Federal
Constitutional claims, including civil rights violations brought under 42 USC
§ 1983, and those causes of action are hereby dismissed (see e.g. Brown
v State of New York, 89 NY2d 172, 184 ). Further, because claimant
has an adequate remedy available for defendant’s allegedly wrongful
conduct, i.e. a cause of action for assault, this Court need not recognize a
tort cause of action under the State Constitution (see Martinez v City of
Schenectady, 97 NY2d 78 ; Brown v State of New York, supra).
Accordingly, this cause of action is also dismissed.
Defendant’s Motion No. M-75928 is granted to the extent that
claimant’s causes of action for violations of both the Federal
Constitution and the State Constitution are dismissed. However, the cause of
action for assault remains pending, and thus there is no basis to treat
claimant’s notice of intention as a claim. Accordingly, claimant’s
Cross Motion No. CM-76004 is denied as moot.
Defendant also moves for leave to amend the answer to assert a defense based
upon the statute of limitations as set forth in CPLR article 2. Defendant
argues that even if it has waived the untimeliness defense under the Court of
Claims Act, the statute of limitations applicable to this claim has expired, and
the answer should be amended to include such a defense.
In opposition, claimant reiterates his position that defendant has waived the
statute of limitations defense as it was not raised with particularity.
Claimant’s contention is without merit. The Court of Appeals has held
that the simple statement “statute of limitations,” without any
statutory reference, is sufficient to raise and preserve that defense
(Immediate v St. John’s Queens Hosp.,
48 NY2d 671, 673 ;
see also DeSanctis v Laudeman,
169 AD2d 1026 ). As the Court
stated previously in this Decision and Order (supra
at 3), the first
affirmative defense asserts that the statute of limitations has expired.
Defendant has therefore already properly raised and preserved this defense in
its verified answer. Accordingly, defendant’s motion for leave to amend
the answer to include a statute of limitations defense is denied as
In conclusion, defendant’s Motion No. M-75928 is granted to the extent
that claimant’s causes of action for violations of both the Federal
Constitution (pursuant to 42 USC § 42) and the State Constitution are
dismissed. Motion No. M-76051 and Cross Motion No. CM-76004 are both denied as
3) Notice of Motion filed on December 29, 2008; Affirmation of James E.
Shoemaker, AAG, dated December 24, 2008, and attached Exhibits A through
4) Reply Affirmation of David H. Swyer, Esq., dated January 13, 2009.
Filed papers: Claim filed on June 16, 2005; Verified Answer filed on July 25,