Opinion
# 2014-029-017 Claim No. 119293 Motion No. M-84614
03-11-2014
TONY HARRISON v. THE STATE OF NEW YORK
Claimant's attorney: TONY HARRISON, pro se Defendant's attorney: ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By Anthony Rotondi, Assistant Attorney General
Synopsis
CPLR 3211e which requires that a motion to dismiss based on improper service be made within 60 days of serving the answer does not apply in the Court of Claims because the Court of Claims Act has not yet been amended to conform with it. Thus, defendant's motion to dismiss was timely even though brought on the eve of trial. Nevertheless, defendant waived the defense, which implicates personal, not subject matter, jurisdiction, by serving answers to this and another claim with the wrong claim numbers on them, thus violating Court of Claims Act section 11b which requires that defenses based on lack of personal jurisdiction be set forth in the answer with particularity or be waived and, once waived, cannot be the basis for dismissal.
Case information
UID: 2014-029-017 Claimant(s): TONY HARRISON Claimant short name: HARRISON Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119293 Motion number(s): M-84614 Cross-motion number(s): Judge: STEPHEN J. MIGNANO Claimant's attorney: TONY HARRISON, pro se ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL Defendant's attorney: By Anthony Rotondi, Assistant Attorney General Third-party defendant's attorney: Signature date: March 11, 2014 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
This claim arises from a January 23, 2010 incident in which claimant, an inmate at Shawangunk Correctional Facility, was allegedly injured when a chair in which he was sitting collapsed. The claim alleges that the incident was the result of defendant's negligence, specifically that defendant's employees had actual notice that the particular type of chair was defective.
By letter dated January 31, 2014, the parties were advised that the claim was scheduled for trial on March 18, 2014. Six days later, defendant served and filed the instant motion, seeking dismissal of the claim for lack of jurisdiction arising from alleged service by regular mail rather than by a method of service authorized by the Court of Claims Act (personal delivery or certified mail, return receipt requested; Court of Claims Act § 11[a]).
Claimant opposes the motion, arguing that defendant has failed to raise the issue at the "appropriate time required by [the] Civil Practice Law and Rules," and that granting defendant's motion, not made until more than three years after the defective service, on the veritable eve of trial, would deprive him of due process of law.
The Court of Claims Act was amended in 1990 to add section 11(c), which requires that a defense based on improper or untimely service be raised in the answer or a pre-answer motion or it is waived. The statute was a response to and a rejection of judicial holdings that failure to comply with the time limitations and manner of service requirements of the Court of Claims Act resulted in a defect in subject matter jurisdiction, not in personam jurisdiction. The specific purpose of the change was to address the dichotomy between law and practice in the Court of Claims and that in the other courts of the state with respect to dismissal of actions based on improper or untimely service by conforming Court of Claims law and practice to that generally prevailing and thus eliminating an unwarranted trap for the unwary practitioner or pro se litigant.
In support of the amendment of Section 11 to add paragraph (c), Attorney General Robert Abrams wrote: "court decisions have consistently held that a claimant's failure to meet those time limits [contained in section 10] . . . deprives the Court of subject matter jurisdiction of the claim. Thus, it is currently a non-waivable defect. This bill would change this rule and make such lateness a waivable defense . . . With regard to manner of service, court decisions at the Court of Claims level are split on the question of whether a defect in the method of service . . . is a matter of subject matter jurisdiction - and, thus, non-waivable - or a matter of personal jurisdiction . . . [and appellate courts] have not specifically decided the issue. This bill would eliminate any inconsistency or uncertainty on this point." (Bill Jacket, L 1990, ch 625, pp 10-11, Memorandum for the Governor from Robert Abrams, Attorney General).
With respect to issues relating to manner of service, Presiding Judge Corbett explained that some judges "have applied a recent Court of Appeals decision (Finnerty v New York State Thruway Authority, 75 NY2d 721) to require that they be treated as issues of subject matter jurisdiction and not waivable" while other trial and appellate courts treated manner of service as relating to the waivable defense of personal jurisdiction (Bill Jacket, L 1990, ch 625, pp 12-13, letter to Governor's counsel from Presiding Judge Donald J. Corbett, Jr.).
"The memoranda contained in the Bill Jacket of chapter 625 of the Laws of 1990 which enacted section 11 (c) clearly disclose that the primary purpose of the Legislature in enacting the subdivision was to remove the time limitations of section 10 and the service and filing requirements of section 11 from the realm of subject matter jurisdiction by making departures from the statutory requirements waivable." (Knight v State of New York, 177 Misc 2d 181,183).
In support of the amendment, Senator Christopher Mega (future presiding judge of this court) wrote: "The amendments to section 11 would provide analogous provisions to those presently found in CPLR section 3211(e). Under that section, in litigation between citizens, objections to and defenses based on lack of personal jurisdiction (equivalent to the manner of service in court of claims actions) or failure to comply with the statute of limitations (equivalent to the time limitations of section 10) are waived unless expressly and quickly raised . . . By case law, time limitations set forth in the court of claims act are treated in all instances as relating to the subject matter jurisdiction of the court, and therefore may be raised at any time. The amendments made herein would make the system relating to litigation against the State more equitable." (Bill Jacket, L 1990, ch 625, p 5, Sponsor's Memorandum).
Assemblyman G. Oliver Koppell (future Attorney General) wrote: ""The effect of this proposed change is to conform the procedures in the Court of Claims to existing law under the [CPLR] . . . procedural handicaps to the pursuit of remedies which are given to plaintiffs should not be allowed to prejudice them in cases against the state where no such obstacle exists in cases against a private party" (Bill Jacket, L 1990, ch 625, p 7 Assembly Sponsor's Memorandum).
Court of Claims Act section 11(c) provides:
"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 subdivision a of this section, or (iii) the verification requirements as set forth in subdivision b of this section 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."Thus, defendant's motion to dismiss for lack of personal jurisdiction is properly before the court. Despite claimant's understandable questioning of defendant's tactics herein - waiting until a trial was scheduled before submitting a motion whose grounds were evident over two years earlier - there was no legal impediment to defendant acting as it did. Nevertheless, defendant must still demonstrate compliance with section 11(c) - that it raised the defense with particularity within the required time and that it did not by its conduct waive the defense. On the facts of this case, defendant cannot so demonstrate.
In its motion papers, defendant invokes CPLR 3211(a)(2) (subject matter jurisdiction) and (a)(8) (personal jurisdiction) as the basis for its request for dismissal. CPLR 3211(e) provides that a motion pursuant to subdivision (a)(2) based on alleged lack of subject matter jurisdiction may be made at any time (i.e., it may not be waived; the distinguishing characteristic that is the sine qua non of subject matter jurisdiction). In contrast, the statute then goes on to provide that "an objection that the summons and complaint, summons with notice, or notice of petition and petition was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship" (emphasis added). It would appear that this is the provision claimant invokes in contending that defendant's current motion is late.
When section 11(c) was added to the Court of Claims Act in 1990, the quoted portion of CPLR 3211(e) requiring that jurisdictional motions based on improper service be made within 60 days was not part of the statute. When the 60-day requirement was added to CPLR 3211(e) in 1997, claims were not among the pleadings enumerated in the revised statute and it has thus been held, without dispute, that the quoted portion of CPLR 3211(e) does not apply to claims in the Court of Claims (see, e.g., Diaz v State of New York, 174 Misc 2d 63 [1997]), notwithstanding that the conformity between Court of Claims practice and Supreme Court practice in this area - the expressed legislative goal in 1990 - was therefore only achieved for a brief seven-year period.
D'Angelo v State Ins. Fund, 48 AD3d 400, 402; Robinson v Oceanic Steam Nav. Co., 112 NY 315, 324).
After the underlying January 23, 2010 incident, claimant served a notice of intention on defendant (no issue is raised as to that document) and on December 22, 2010, claimant served the instant claim (filed December 20, 2010). Apparently, that same week claimant also served and filed a different claim - No. 119306 - in which he sought to recover for damage to a typewriter. In support of the current motion to dismiss this claim and in an attempt to demonstrate compliance with section 11(c), defense counsel states: "Unfortunately, the Answer served in connection with Claim 119293 [this claim] was erroneously filed and captioned as Claim Number 119306," a sentence that is subtly misleading, making it sound as if it was a filing mistake, and obscuring the only salient fact that the answer served on claimant with Claim No. 119293 was a document that defendant now says responded to a different claim and which would have made no sense as applied to this claim, and a document which this court has not in fact seen.
As defendant notes, statutory requirements governing commencement of a claim in the Court of Claims are strictly construed. So too, since 1991, are (1) the statutory direction that objections to jurisdiction based on manner of service or timeliness be set forth with particularity, and (2) the statutory admonition that once a defense based on either factor is waived, "the court shall not dismiss the claim" for such reason.
In one of the first decisions arising under section 11(c), Judge Silverman noted that "[f]or a statement to be sufficiently particular it must give notice of the transaction or occurrence intended to be proven and the material elements of it . . . [t]he primary purpose of a pleading is to advise the adverse party of a claim or defense . . . [a] claimant should not be left in a quandary to determine what an affirmative defense is referring to" (Fowles v State of New York, 152 Misc 2d 837, 840 [1991]).
Where the defect in question is allegedly improper service, "to be sufficiently particular, the defendant's statement should refer to (1) the manner of service that was used, (2) the manner of service that should have been used, and (3) the statutory authority for such a requirement" (Sinacore v State of New York, 176 Misc 2d 1, 7 [1998] quoting Garcia v State of New York, unreported decision, Ct Cl, Benza, J., Sept. 24, 1993). Judge King went on to observe in Sinacore that "[t]he Legislature enacted section 11(c) to, among other things, avoid 'guess work' by claimants as to the specifics of affirmative defenses" (176 Misc 2d 1, 10).
In addition to requiring that the two personal jurisdictional defenses be set forth with particularity or be deemed waived, the statute provides that once a defense is waived it may not be the basis for dismissal. Thus, as Judge Collins held in Knight v State of New York (177 Misc 2d 181, 184), defendant may not amend its answer to include a personal jurisdictional defense that was omitted from the original answer, because service of the original answer without the defense waived it, and once waived it is irretrievably lost pursuant to the explicit mandate of the statute.
In Knight, Judge Collins denied defendant's motion to amend its answer to include the jurisdictional defense. That principle was extended by Judge Read in Adebambo v State of New York (181 Misc 2d 181, 184) when she held that defendant cannot amend its answer to assert the jurisdictional defense even in an amended answer filed as of right within 40 days of service of the original answer and not requiring court permission: "As Judge Collins noted in Knight (supra), the language in section 11 (c) prohibiting dismissal of the claim once an untimeliness defense has been waived is clear. The State's right to amend its answer cannot overcome a waiver that has already been effected . . . ; therefore, the State has waived any objection to this claim's timeliness by its failure to assert untimeliness with particularity in its original answer." The sole exception is if defendant amends its answer prior to the expiration of the original 40 day period in which to answer the claim (Harris v State of New York, 190 Misc 2d 463).
All of these results read together effectuate the statutory mandate that if the defense is not raised with particularity "before service of the responsive pleading is required [i.e., 40 days after service of the claim] or in the responsive pleading," it is waived.
Here, defendant maintains that, despite the strict construction of the statute as evidenced by the above decisions - all of which are informed by a concern that the claimant be provided with prompt, clear, unequivocal notice of exactly what defendant's position is with respect to personal jurisdiction - it was of no moment that the answer that was intended to respond to this claim had the wrong claim number on it and the answer that was served with this claim number on it did not correspond to this claim. "A review of the claim and answer" would have clarified the confusion, according to defendant (Affirmation in Support, ¶ 6). Claimant, an incarcerated inmate unschooled in the law, has not moved for a default judgment and "cannot claim any surprise or prejudice" since the decision of Judge Scuccimarra dismissing the other claim, on default, should have alerted him to the problem. None of these points have any relevance.
The obvious and inevitable conclusion engendered by the undisputed facts is that defendant's mistake resulted in exactly what the statute was designed to avoid - it placed the claimant in a quandary as to what defendant was referring to, it did not eliminate guess work but rather required a systematic analysis of four documents in order to determine what defendant was alleging. Certainly that would have been possible, and someone could presumably sit down with the four documents spread out and figure out the mistake that defendant made. That is exactly the sort of investigatory activity that the statute was designed to eliminate. And anything that happened more than 40 days after the claim's service, specifically the motion practice before Judge Scuccimarra and the switching of the answers in the court's files, is completely irrelevant to any inquiry here.
The court finds that defendant waived the defense of improper service by failing to serve and file a proper answer that set forth the defense with particularity within the time required by the statute. To the extent that defendant is technically in default in this claim, the court sua sponte relieves defendant of the default and deems the answer filed with Claim No. 119306 as the amended answer in this case. The trial will proceed as scheduled.
During the pendency of this motion, the court received correspondence from the claimant that purported to be a motion directing production of witnesses and documents at trial. The papers were not filed with the clerk of the court as required and there is no motion in that regard before the court. The court construes claimant's papers as an informal request for such relief and denies it, with the exception that defendant is directed to produce claimant's medical records as pertains to the injury in question at trial.
March 11, 2014
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Papers Considered:
Notice of Motion, Affirmation in Support and Exhibits
Affidavit and Opposition