Opinion
# 2011-018-231 Claim No. 108281 Motion # 2011-018-231 Claim No. M-79365 # 2011-018-231 Claim No. M-77843
09-07-2011
DERRICK STEVENS v. STATE OF NEW YORK
Synopsis
Defendant is not entitled to bring a second pre-answer motion to dismiss (Held v Kaufman, 91 NY2d 425, 429) and none of the exceptions to the rule apply. It is exactly the reasoning behind this rule that is implicated here, since this claim has been pending since 2003 and issue still has not been joined. Defendant's motion is denied.
Claimant's has failed to meet his burden for a change of venue, and his motion is also denied. Case information
UID: 2011-018-231 Claimant(s): DERRICK STEVENS Claimant short name: STEVENS Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 108281 Motion number(s): M-79365, M-77843 Cross-motion number(s): Judge: DIANE L. FITZPATRICK Claimant's attorney: STUART JAY YOUNG, ESQUIRE ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: G. Lawrence Dillon, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: September 7, 2011 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant brings a motion for a change of venue. Defendant interposed a letter response dated March 6, 2010 to that motion and brings a "pre-answer" motion to dismiss the claim for failure to timely file pursuant to Court of Claims Act § 10. Claimant opposes Defendant's motion. Although Claimant's motion was filed first, given its nature, the Court will initially address Defendant's motion.
Defendant's Motion M-79365
The procedural path this claim has taken is unusual and must be set forth for the determination of this motion. First, the claim was filed on September 15, 2003, pro se. After a letter dated October 16, 2007 was mailed by the Court scheduling a status conference, Claimant's current counsel filed a notice of appearance. On March 12, 2010, the Hon. Norman I. Siegel of this Court issued an Order to Show Cause directing the parties to submit affidavits and relevant documentary evidence relating to service of the claim after the Attorney General's Office raised the issue of service through correspondence. In response to that Order to Show Cause, submissions from both parties were received, and Judge Siegel determined in a Decision and Order dated July 15, 2010,that based upon the prima facie evidence Claimant submitted (i.e., the return receipt card stamped as received by the Attorney General's office on May 23, 2003), it was established that the claim was served on May 23, 2003. That Decision and Order reflects there was no counter proof from the Attorney General. Also, in that Decision and Order Judge Siegel gave Defendant 65 days to interpose an Answer or move to dismiss the claim.
Motion No. M-77969.
In response to Judge Siegel's Decision and Order, Defendant did not interpose an Answer but instead brought a motion to renew (CPLR 2221) and a "pre-answer motion to dismiss the claim"for lack of subject matter and/or lack of personal jurisdiction. Judge Siegel denied Defendant's requests to renew and its motion to dismiss the claim for lack of proper service. That Decision and Order was filed December 2, 2010. On January 12, 2011, the current pre-answer motion to dismiss was filed and served seeking dismissal of the claim for failure to timely file the claim.
Motion No. M-78657.
By this motion, Defendant asserts that although the claim was found to be timely served, it is still untimely under Court of Claims Act § 10 (3). The claim accrued on March 11, 2003, but was not filed with the Clerk of the Court until September 15, 2003. Court of Claims Act § 10 (3) requires that the claim be "filed and served upon the attorney general within ninety days after the accrual of such claim" unless a notice of intention is served within that same time frame in which case a claim must be filed and served within two years after the date of accrual. Both service and filing of the claim must occur in accordance with the statute in order to invoke subject matter jurisdiction in the Court of Claims (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468 [3d Dept 2011]; Vargas v State of New York, 62 AD3d 1170, 1171 [3d Dept 2009]).
Prior to 1990, the issues of timeliness and proper service in the Court of Claims involved questions of subject matter jurisdiction which could be raised at any time. Since 1990, the Court of Claims Act has been amended taking the issues of the manner of service in Section 11 or the time limitation in Section 10 out of "the realm of subject matter jurisdiction by making departures from the statutory requirements waivable." (Knight v State of New York, 177 Misc 2d 181 [Ct Cl 1998]). Thus, since 1990, Section 11 of the Court of Claims Act places the burden on the Defendant to assert an untimeliness or improper service defense within the time available to answer the claim by serving a Verified Answer with a sufficiently particularized affirmative defense or by bringing a pre-answer motion to dismiss (see Court of Claims Act § 11(c); Uniform Rules for the Court of Claims § 206.7). The failure to timely assert these defenses forever waives them and precludes this Court from granting dismissal for those defects.
Since 2005 this section also makes the requirements for verification a waivable objection (Court of Claims Act § 11 [c]).
Defendant brought a prior pre-answer motion to dismiss the claim for untimely service, which was denied. Instead of filing an answer, Defendant now brings a second pre-answer motion to dismiss for untimely filing.
CPLR 3211 (e) provides that only one motion to dismiss may be made. This applies to the Court of Claims by the Rules (Uniform Rules for the Court of Claims § 206.1 [c]). The purpose of this "single motion rule" is to promote efficiency, spare unnecessary motion practice and "protect the pleader from being harassed by repeated CPLR 3211 (a) motions" (Siegel Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3211:55, p. 82; Ballard v HSBC Bank USA, 6 NY3d 658 [2006]).
The single motion rule is not violated where a second motion to dismiss is directed at another pleading (Nassau Roofing & Sheet Metal Co., Inc. v Celotex Corp., 74 AD2d 679 [2d Dept 1980]); or an amended pleading (Sevenson Hotel Assoc., Inc. v Stanges, 262 AD2d 957 [4th Dept 1999]); or where the prior motion was not addressed on the merits (Rivena v Bd. of Educ. of City of New York, 82 AD3d 614 [1st Dept 2011]); or the prior motion was denied without prejudice (Merrill Lynch Credit Corp. v Smith, 87 AD3d 1391 [4th Dept 2011]); or the second motion is addressed to a nonwaivable ground (Siegel Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3211:55 pp. 82-83).
Here, Defendant has already had the opportunity to raise the timeliness of the filing of this claim when on August 9, 2010, it filed a motion to renew with a motion to dismiss for untimely service. Defendant is not entitled to bring a second pre-answer motion to dismiss (Held v Kaufman, 91 NY2d 425, 429) and none of the exceptions to the rule apply. In fact, it is exactly the reasoning behind this rule that is implicated here, since this claim has been pending since 2003 and issue still has not been joined.
It is unclear whether Defendant's right to answer has expired pursuant to CPLR 3211 (f).
Accordingly, Defendant's motion to dismiss the claim for untimely filing is DENIED.
Claimant's Motion for a Change of Venue of Trial M-77843
Claimant brings a motion for a change of venue from Utica to New York City. Claimant's counsel, who is 79 years old, asserts that he is a sole practitioner who lives and practices in the New York City area, and it would be a substantial burden for him to travel to Utica to try this case. He also indicates that he has been recuperating from an emergency cardiac surgery and eye surgery. Claimant also lives in the Bronx and has limited finances to meet the expenses of having to travel to Utica to try this case.
Since there are no provisions in the Court of Claims Act and Court Rules for changing the venue of an action in the Court of Claims, the CPLR applies (Court of Claims Act § 9 [9]; Uniform Rules for the Court of Claims § 206.1 [c]). Pursuant to CPLR 510 (3), the Court can, upon motion, change the place of trial of an action where the county designated is not a proper county, where there is reason to believe that an impartial trial cannot be obtained in the proper county, or when "the convenience of material witnesses and the ends of justice will be promoted by the change." It is Claimant's burden as the movant to establish that the venue of the action should be changed (Boral v Clarkson Univ., 270 AD2d 776 [3d Dept 2000]), and it is left to the sound discretion of the Court (Blasch v Chrysler Motors Corp., 84 AD2d 894 [3d Dept 1981]).
Here, the claim arose while Claimant was an inmate working in the mess hall at Mohawk Correctional Facility in Rome, New York. Based upon the location where the claim arose, and in accordance with Rule 206.4 of the Uniform Rules for the Court of Claims, the Clerk of the Court appropriately venued the claim in the Utica District (see Uniform Rules for the Court of Claims § 206.4).
To meet the burden for a change of venue, the moving party must supply the names, addresses, and occupations of the witnesses whose convenience it is alleged will be affected, the specifics of each proposed witness's testimony, which must be "necessary and material," and show that these witnesses have been contacted and are willing to testify (Stainbrook v Colleges of Senecas, 237 AD2d 865 [3d Dept 1997]; O'Brien v Vassar Bros. Hosp., 207 AD2d 169 [2d Dept 1995]). Some evidence concerning the calendar in the counties involved in the motion is also a factor to be considered, although not controlling (Stratton v Dueppengiesser, 281 AD2d 991 [4th Dept 2001]).
Claimant has failed to meet the criteria necessary for the Court to change the venue of this claim. It is solely the convenience of Claimant's counsel and Claimant that forms the basis for this motion. Convenience of the parties, their agents and employees, or others within their control carry little weight on a motion to change the venue (Said v Strong Mem. Hosp., 255 AD2d 953 [4th Dept 1998]). Claimant's counsel has not shown that he is unable to travel due to his health, only that he states it would be "physically daunting." The action was venued in Utica when Claimant's counsel accepted this case in 2007.
Claimant has failed to meet his burden for a change of venue. The Court will try to minimize Claimant's and his counsel's personal appearances, utilizing telephone conferencing whenever possible. Moreover, this should not be a lengthy trial given the allegations, and it may be concluded in one day.
Accordingly, Claimant's motion is DENIED.
September 7, 2011
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following in deciding these motions:
M-77843
1) Notice of Motion.
2) Affirmation of Stuart Jay Young, Esquire, in support, with exhibit attached thereto.
3) Letter response from Defendant dated March 6, 2010.
M-779365
4) Notice of Motion.
5) Affirmation of G. Lawrence Dillon, Esquire, in support, with exhibits attached thereto.
6) Affirmation in Opposition of Stuart Jay Young, Esquire, with exhibits attached thereto.