Trayer v. State, 64348

• Decision Date: 16 December 1982
• Docket Number: No. 64348,65702,65793,Nos. 64349,64348,s. 64349
• Citation: 458 N.Y.S.2d 262,90 A.D.2d 263
• Parties: Todd C. TRAYER, Respondent, v. STATE of New York, Appellant. (Claim) (And three other claims--)
• Court: New York Supreme Court — Appellate Division

Page 262

458 N.Y.S.2d 262

90 A.D.2d 263

Todd C. TRAYER, Respondent, v. STATE of New York, Appellant. (Claim No. 64348.) (And

three other claims--Nos. 64349, 65702, 65793.)

Supreme Court, Appellate Division,

Third Department.

Dec. 16, 1982.

Robert Abrams, Atty. Gen., Albany (Betsy Broder, Asst. Atty. Gen., Albany, of counsel), for appellant.

Greg D. Lubow, Tannersville, for Todd C. Trayer and another, respondents.

John A. Lahtinen, Plattsburgh, for Lawrence R. Darrah and another, respondents.

O'Connell & Wolfe, Plattsburgh (Michael J. Howley, Plattsburgh, of counsel), for James Clukey, respondent.

Before MAHONEY, P.J., and KANE, CASEY, MIKOLL and LEVINE, JJ.

MAHONEY, Presiding Justice.

Each of the instant cases involves a claim against the State for alleged intentional tort. Claimants in Claims Nos. 64348 and 64349 seek to recover damages for false imprisonment and malicious prosecution. Claimants in Claim No. 65702 seek to recover for assault while their counterpart in Claim No. 65793 alleges that he sustained injuries resulting from an assault and battery. The applicable Statute of Limitations for each of these causes of action would be the one-year period contained in CPLR 215 (subd. 3). All of the claimants properly filed notices of intention to file claims within 90 days of the accrual of their respective claims as required by section 10 (subd. 3) of the Court of Claims Act. All claimants also complied with the additional time limitation in that section by filing their claims against the State within two years of the accrual of their claims, although in each instance the claim was filed more than one year from the date on which the claim accrued.

Accordingly, in Claims Nos. 65702 and 65793, the State, prior to answering, moved to dismiss the claims pursuant to CPLR 3211 (subd. [a], pars. 2, 5) for lack of subject matter jurisdiction and for failure to comply with the Statute of Limitations contained in CPLR 215 (subd. 3). In Claims Nos. 64348 and 64349, the State answered without raising the Statute of Limitations defense. Instead, subsequent to answering, the State moved to dismiss those claims on the ground that they were barred by CPLR 215 (subd. 3).

The Court of Claims denied the State's motion to dismiss in each claim. With regard to Claims Nos. 64348 and 64349, the court held that the State had waived any objection based on the Statute of Limitations since it had not raised that objection either in its answer or by way of a CPLR 3211 motion to dismiss prior to answering. In Claims Nos. 65702 and 65793, the court ruled that even though the actions were not commenced within one year of their accrual, the claims were timely and the court had jurisdiction over them since the time requirements of section 10 (subd. 3) of the Court of Claims Act had been met. The State has appealed all of the orders denying its motions to dismiss the claims.

Turning first to the order involving Claims Nos. 64348 and 64349, the Court of Claims properly ruled that the State waived any objection based on the provisions of CPLR 215 by not raising the matter in either its answer or by way of a pre-answer motion. The State argues that although private parties may waive the defense of the Statute of Limitations, this rule does not apply to the State since the notice requirements relevant to claims against the sovereign are jurisdictional prerequisites which can be raised at any time. The cases cited by the State in support of its position, however, all deal with the time limitations contained in section 10 of the Court of Claims Act or that statute's predecessor (see Buckles v. State of New York, 221 N.Y. 418, 423-424, 117 N.E. 811; Gates-Chili Cent. School Dist. v. State of New York, 55 A.D.2d 44, 46, n. 1, 389 N.Y.S.2d 716; Wheeler v. State of New York, 285 App.Div. 1008, 139 N.Y.S.2d 86; Bay Ridge Air Rights v. State of New York, 84 Misc.2d 801, 804, 376 N.Y.S.2d 895, mod. 57 A.D.2d 237, 394 N.Y.S.2d 464, affd. 44 N.Y.2d 49, 404 N.Y.S.2d 73, 375 N.E.2d 29; see, also, Gates v. State of New York, 128, N.Y. 221).

While it is undisputed that the requirements contained in that section are jurisdictional in nature and thus can be raised at any stage of the action, the State does not seek to have any of the claims dismissed on the basis of a failure to comply with the mandates of section 10 of the Court of Claims Act. The time limitations for filing a notice of intention and the subsequent claim contained in that section were met by all claimants. Instead, the State bases its argument for dismissal of the claims on CPLR 215, a time limitation not contained in the statutes conferring jurisdicti on the Court of Claims. Accordingly, it is our view that the State's contention that these actions were not timely commenced within the one-year Statute of Limitations of CPLR 215 (subd. 3) does not raise a jurisdictional objection and that the Court of Claims correctly found a waiver by the State of this defense in Claims Nos. 64348 and 64349.

Having decided that the Court of Claims properly refused to pass upon the argument being advanced by the State in two of the claims, we must now review that same court's resolution of that issue on the merits in the two remaining claims wherein the argument was timely made in a pre-answer motion. In so doing, we are faced with the task of harmonizing two statutes which appear to be in direct conflict with one another. One of these statutes, section 10 (subd. 3) of the Court of Claims Act, has already been discussed. It provides:

A claim to recover damages for injuries to property or for personal injury caused by the tort of an officer or employee of the state while acting as such officer or employee, shall be filed within ninety days after the accrual of such claim unless the claimant shall within such time file a written notice of intention to file a claim therefor, in which event the claim shall be filed within two years after the accrual of such claim.

The other relevant statute, section 12 (subd. 2) of the Court of Claims Act, is based on a provision in the New York State Constitution (art. III, § 19) and states:

No judgment shall be awarded to any claimant on any claim which, as between citizens of the state, would be barred by lapse of time.

The State argues that any claim based on an intentional tort having a one-year Statute of Limitations must be filed within one year from the date the claim accrued or else be violative of both the constitutional and statutory prohibitions against claims which "as between citizens of the state, would be barred by lapse of time". Claimants, on the other hand, contend that the timeliness of their claims is governed solely by the requirements of section 10 of the Court of Claims Act, with which they have complied, and that CPLR 215 has no application to actions against the State.

Although this court has in the past applied section 10 (subd. 3) of the Court of Claims Act to questions of timeliness involving claims for intentional torts alleged to have been committed by the State (see, e.g., Cunningham v. State of New York, 77 A.D.2d 756, 431 N.Y.S.2d 178, mod. 53 N.Y.2d 851, 440 N.Y.S.2d 176, 422 N.E.2d 821; Marsala v. State of New York, 41 A.D.2d 878, 343 N.Y.S.2d 149), this was done without addressing the purported statutory and constitutional inconsistencies posed by the State herein. Two lower courts have addressed the issue, however, and reached opposite conclusions (Bensen v. State of New York, 88 Misc.2d 1035, 389 N.Y.S.2d 760 [claim held timely so long as filed within two years prescribed by Court of Claims Act, § 10, subd. 3]; Kilbourne v. State of New York, 111 Misc.2d 161, 443 N.Y.S.2d 538 [claim untimely unless filed within one-year Statute of Limitations of CPLR 215, subd. 3] ).

In attempting to resolve the ambiguity resulting from the conflicting statutory language, we strive, as always, for an understanding of legislative intent. A historical review of the relevant statutory provisions involved in this appeal gives some insight into what that intent was. The State waived its sovereign immunity from liability for the torts committed by its employees in 1929 (L.1929, ch. 467, enacting former Court of Claims Act, § 12-a). The legislation which announced this waiver of immunity required claimants seeking to sue the State for torts committed by its employees to serve a copy of the claim or notice of intention to file a claim upon the Attorney-General within 60 days after the injury occurred and to file the claim within two years of the event causing the injury (id.). This statute, which was the forerunner to the current section 10 (subd. 3) of the Court of Claims Act, was adopted at a time when the Statute of Limitations was three years for negligence and two years for all intentional torts (see former Civ.Prac.Act, § 49, subd. 6; § 50, subd. 1, as enacted by L.1920, ch. 925). Thus, in 1929, the two-year outside limit on filing claims for torts committed by State employees served only to reduce by one year the normal time limitation for commencing negligence...