Motion to reargue denied. Service of two answers, one of which did not raise lack of verification as a defense, resulted in waiver.
|Claimant short name:||GILLARD|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claim number(s):||117674, 117755|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Gary Gillard, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 22, 2010|
|See also (multicaptioned case)|
Defendant moves to reargue claimant's prior motion which sought, inter alia, an Order "seeking [d]irection, correction and or dismissal to allow the proper actions and new claim to be filed" and resulted in an Order dismissing defendant's affirmative defense alleging a failure to verify claim number 117674.
Two nearly identical claims were served. The first claim, assigned claim number 117674, was properly served on November 12, 2009 but unverified. This claim was promptly rejected and returned to the claimant by letter dated November 13, 2009. The second claim, assigned claim number 117755, was properly verified but served by regular mail and received in the Office of the Attorney General on December 2, 2009. Defendant served two answers on December 9, 2009, both of which referenced claim number 117674. One answer purported to respond to the claim served on November 12, 2009 but included defenses alleging both improper verification of the claim received on November 12, 2009 and improper service of the claim received by the defendant on December 2, 2009 (defendant's Exhibit D). The other answer purportedly responded to the claim received by ordinary mail on December 2, 2009 and included defenses asserting improper service of the claim. Defendant now submits in support of the instant motion a third answer, this one referencing claim number 117755 and responding, once again, to the claim served on December 2, 2009 (defendant's Exhibit G).
It is well settled that a motion to reargue is addressed to the sound discretion of the Court and requires the moving party to demonstrate that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented (see CPLR Rule 2221 [d] ; Peak v Northway Travel Trailers, 260 AD2d 840 ; Spa Realty Assocs. v Springs Assocs., 213 AD2d 781 ). Such a motion does not serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (Foley v Roche, 68 AD2d 558, 567 , lv denied 56 NY2d 507 ).
Defendant contends in support of the instant motion that the Court overlooked the fact that the two answers served in relation to claim number 117674 specified the claim to which they responded, i.e., one answer responded to the claim received on November 12, 2009 and the other responded to the claim received on December 2, 2009(1) . It is undisputed, however, that the caption of both answers cite claim number 117674. Section 206.7 of the Rules of the Court of Claims (22 NYCRR) requires service of an answer to each claim within 40 days of service of the claim and, with the exception of the time in which to amend a pleading, provides for amendment in the same manner provided by CPLR 3025 (22 NYCRR § 206.7 [a] and [b]). While § 206.7 permits the service of an amended answer, it does not permit the dual existence of two answers to the same claim. Thus, notwithstanding defendant's contrary argument, one of the two answers served in response to claim number 117674 must be treated as an amended answer. As this Court indicated in its prior Order, regardless of which of the two answers relating to this claim were served and filed first, the outcome is the same - defendant waived its defense that the claim was unverified. The Court stated the following in this regard:
"In such circumstances, whichever answer was the second to be served and filed constituted an amendment of the first, original answer as a matter of law (CPLR 3025 [a]). To the extent the answer containing the verification defense was first filed and served, that defense was withdrawn, and thus a waiver of the defense was effected, by filing and service of the second answer which does not include such a defense. To the extent the answer asserting the verification defense was the second to be served and filed, it is ineffective to negate the waiver which previously occurred through service of the answer without this defense. In addressing the waiver provisions contained in Court of Claims Act § 11 (c) (i) and (ii), this Court observed in Knight v State of New York (177 Misc 2d 181, 184 [Ct Cl 1998]) that "[t]o permit an already waived time limitation or manner of service defense to be interposed through the device of an amended answer would not only be contrary to the underlying purpose of section 11 (c) but would be of no practical effect given the express language prohibiting dismissal of the claim once the defenses are waived" (see also Adebambo v State of New York, 181 Misc 2d 181 [Ct Cl 1999]; but see, Lawyer v State of New York, UID # 2005-036-101, Claim No. 109555 [Ct Cl September 6, 2005] Schweitzer, J.; Harris v State of New York, 190 Misc 2d 463 [Ct Cl 2002]). For this same reason, the Court finds that the defendant herein waived any defense it may have had with respect to the claimant's failure to meet the verification requirements of Court of Claims Act § 11 (b)."
While the defendant points out that it did not receive notification from the Clerk that the claimant had filed another claim (claim number 117755) until December 22, 2009, this in no way alters the result. Two answers cannot simultaneously exist on the same claim. While this case represents somewhat of a procedural anomaly, the more prudent course for defense counsel would have been to first check with the Clerk's office to determine whether the verified claim had been filed under a different claim number or raise both the verification defense and service defense in the same answer. Having failed that, the Court is constrained to adhere to its prior determination dismissing the defendant's affirmative defense alleging the failure to verify claim number 117674.
Based on the foregoing, the defendant's motion to reargue is denied.
November 22, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. In fact, although stating it was responding to the claim received on November 12, 2009, one of the answers alleged the claim received on that date was unverified (third affirmative defense) and, also, that the claim received on December 2, 2009 was improperly served (fourth affirmative defense).