Sinacore v. State

• Decision Date: 12 January 1998
• Docket Number: No. 95937,95937
• Parties: , 1998 N.Y. Slip Op. 98,142 Gerald SINACORE, Claimant, v. STATE of New York, Defendant. Claim
• Court: New York Court of Claims

Page 896

671 N.Y.S.2d 896

176 Misc.2d 1, 1998 N.Y. Slip Op. 98,142

Gerald SINACORE, Claimant, v. STATE of New York, Defendant.

Claim No. 95937.

Court of Claims of New York.

Jan. 12, 1998.

Gerald Sinacore, claimant pro se.

Dennis C. Vacco, Attorney-General (Michael W. Friedman, of Counsel), for defendant.

JAMES P. KING, Justice.

Motion by claimant for permission to file an untimely claim pursuant to section 10(6) of the Court of Claims Act.

Claimant has already commenced an action based on the same transactions and occurrences that are set forth in the proposed claim which he seeks permission to late file. This motion is being brought in an effort to "cure" the defect of untimeliness that was asserted, albeit inartfully, in the State's answer.

Claim No. 95937 alleges that the State, through the Department of Correctional Services, committed a number of wrongs in connection with claimant's employment as a correction officer. The acts complained of concluded with a disciplinary hearing held April 11, 1995. In that month, claimant attempted to file and serve a notice of intention. ¹ Other than that, however, claimant's activities were directed toward obtaining relief from the United States District Court, in an action commenced on August 30, 1995.

It was not until the spring of 1997 that all Federal proceedings were concluded, with the action being dismissed on the ground that there was no federal jurisdiction. Claimant then commenced an identical action in this Court, with a claim filed on April 4, 1997 (Claim Number 95937). This claim, of course, was not filed within two years of its accrual, and thus--even if there had been proper service of a notice of intention--claimant failed to comply with the time limitations set forth in section 10(4) of the Court of Claims Act. ² As noted above, the State raised the issue of timeliness in its answer, and claimant--in apparent recognition that his claim was, in fact, untimely--has brought the instant motion for permission to late file.

Before deciding the motion, however, it is necessary to determine whether the State's affirmative defense of untimeliness was raised with sufficient "particularity" to preserve the objection (Court of Claims Act § 11 [c] ). ³ The State's first affirmative defense reads as follows:

That to the extent that the claim was not filed or served within the 90-day time limitation prescribed by Section 10(3) and Section 11 of the Court of Claims Act or, if applicable, within the six-month time limitation prescribed by Section 10(4) of the Court of Claims Act, the Court lacks subject matter jurisdiction of the claim and personal jurisdiction over the defendant, the State of New York.

This wording presents a conditional statement--that if the filing or service was untimely, then the Court lacks jurisdiction to hear the claim.

The Court has observed that this type of wording has been employed by an increasing number of Assistant Attorneys General over recent years and that, moreover, such wording appears both in the answers to claims, such as this one, where there is a legitimate question of timeliness and in the answers to claims that are, without dispute, timely. In other words, for some of the State's defense counsel, it has become routine "boilerplate." Similar statements appear with respect to the defense of improper service, as well. Not all Assistant Attorneys General insert these types of boilerplate, conditional defenses in their answers, but those that do appear to do so in all answers, without regard to whether there is a genuine question about timeliness or manner of service.

There are, of course, many "boilerplate" allegations that are routinely included, properly or not, as affirmative defenses in most of the answers filed by attorneys of this State. A few examples are failure to state a cause of action, claimant or plaintiff's culpability, and third party culpability. Some of these "defenses" are not proper affirmative defenses at all and do not belong in an answer. Nevertheless, these practices are common and accepted by the courts and bar alike, because of the traditional sage advice: "[if] doubt[ful,] * * * treat it as a defense and plead" (Siegel, Practice Commentary, McKinney's Consol Laws of NY, Book 7B, CPLR C:3018:16, p 157). Pleading a matter that is not truly an affirmative defense does not shift the burden of proof to the defendant (Beece v. Guardian Life Ins. Co., 110 A.D.2d 865, 488 N.Y.S.2d 422), so typically there is no risk in including matters that are not necessary--or, even, matters that are not applicable to the particular action--while the consequences of omitting something that should have been pled are grave.

In general, affirmative defenses can be pled in the alternative or hypothetically, and, with respect to content, they are subject to the same basic pleading rules that apply to a claim (Siegel, op. cit., C:3018:19, p 160; see CPLR 3013). ⁴ This means that the statement should give notice of the relevant transactions and occurrences and set forth the material elements of the defense. The requirement that material elements must be stated "takes the pleading requirement of CPLR 3013 a bit past the mere 'notice' part" (Siegel, op. cit., C:3013:3, p 722), but if a material element has been omitted, the usual result is that the party is given permission to replead. A truly dispositive result (dismissal of a complaint or striking an affirmative defense with prejudice) typically occurs only when the missing element does not exist, "not when there has merely been a failure to plead it" (id., at 723).

These general rules, however, are defined by statute with respect to affirmative defenses of untimeliness or improper service in a Court of Claims action, because they carry an additional, express statutory mandate that the affirmative defense be stated "with particularity." Furthermore, this particular statement must appear in either a pre-answer motion or in the answer itself, not in an amended pleading ⁵ or at some later time, for, according to the statute, if the defense has been waived in the first instance "the court shall not dismiss the claim for such failure." (Court of Claims Act § 11[c].)

The background of the 1990 amendment to section 11, which added subdivision (c), is referenced in Fowles v. State of New York, 152 Misc.2d 837, 839, 579 N.Y.S.2d 314. "A failure to comply with the precise [time and manner of service] requirements of the Court of Claims Act has often led to harsh results which deprive a claimant of an adjudication of the claim on the merits." That decision also noted the "gamesmanship" (at 839, 579 N.Y.S.2d 314) that sometimes resulted from the jurisdictional nature of the time and service requirements. Former Court of Appeals Judge Bernard G. Meyer went on to chastise the State for "play[ing] possum" when it failed to raise a jurisdictional defense until after it was possible for the claimant to cure the defect (Jones v. State of New York, 51 N.Y.2d 943, 945, 435 N.Y.S.2d 715, 416 N.E.2d 1050, Meyer, J., dissenting ). ⁶ This charge was later echoed in Pelnick v. State of New York, 141 Misc.2d 542, 543-544, 533 N.Y.S.2d 803, rev'd on other grounds 171 A.D.2d 734, 567 N.Y.S.2d 290:

We note that the State did not include the affirmative defense of untimeliness in its answer. While we must accept that a lack of subject matter jurisdiction cannot be waived and may be asserted at any time, the court does not appreciate or condone the practice of playing "possum" [citation to Jones, supra ] until the Statute of Limitations has expired and claimant can no longer avail herself of the relief afforded by a motion to permit the late filing of a claim.

That these concerns led to the amendment of section 11 is evident in statements contained in the Governor's Bill Jacket for the amending legislation (L.1990, ch. 625, § 1). There are references to the "unfair surprise" that was often visited on pro se litigants (as well as some practicing attorneys) when they discovered that--unlike the corresponding statute of limitations and service requirements of the CPLR, which must be raised by pre-answer motion or in an answer or waived--a claimant's failure to comply with the time and service requirements of the Court of Claims Act could be raised at any time, even at or after trial, often with fatal results (see, letter of [former] Presiding Judge Donald J. Corbett). The Attorney General (then, Robert Abrams) stated in his supporting letter that it was the "policy" of his office to raise such defenses in the first response to a claim. Nevertheless, the practice was not uniform and if the policy were not followed with respect to a particular claim, the results for this claimant would be dire.

It is * * * apparent from the memoranda found in the Bill Jacket for the instant legislation that the amendment was to correct the inequities found in court dismissals arising from the failure of the claimants in those cases to comply with section 10 of the Court of Claims Act which was, by law, deemed to be substantive in nature and not waivable even if not pleaded as an affirmative defense. It was not uncommon to find claimants lulled into a sense of security until the Statute of Limitations ran out, only then to find their cases lost on motion to dismiss for lack of jurisdiction.

(Charbonneau v. State of New York, 148 Misc.2d 891, 895, 561 N.Y.S.2d 876.)

With the enactment of section 11(c), the judges of this Court had reason and occasion to refine the requirement of "particularity," and some of those discussions are referenced below. Initially, however, we address the argument of defense counsel that the statement contained in the answer to this claim must necessarily have been "particular" enough to provide adequate notice, because the claimant responded by moving for permission to file an untimely claim. There is no dispute with this argument on a surface level, as it is self-evident that this...