Opinion
# 2017-015-243 Claim No. 129480 Motion No. M-90432 Motion No. M-90469 Motion No. M-90505
06-23-2017
LARRY WILLIAMS, 10-B-3830 v. STATE OF NEW YORK
Larry Williams, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Michael C. Rizzo, Esq. Assistant Attorney General
Synopsis
Although defendant waived its defense under Court of Claims Act § 10 (3-b) that the intentional tort claim was untimely filed, it did raise as a defense the statute of limitations set forth in CPLR 215 (3), which resulted in dismissal.
Case information
| UID: | 2017-015-243 |
| Claimant(s): | LARRY WILLIAMS, 10-B-3830 |
| Claimant short name: | WILLIAMS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended to reflect the State of New York as the only properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129480 |
| Motion number(s): | M-90432; M-90469; M-90505 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Larry Williams, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Michael C. Rizzo, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 23, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss the instant claim pursuant to CPLR 3211 (a) (2) and (8) on the ground the claim was not timely served. Claimant opposes the motion and, by way of separate motions, seeks the appointment of counsel and an Order compelling discovery.
Claimant, a pro se inmate, seeks damages arising from injuries allegedly sustained when he was assaulted by 20-30 correction officers at Great Meadow Correctional Facility on January 30, 2014 and January 31, 2014.
Defendant contends that although a notice of intention to file a claim was timely served on February 20, 2014, the claim served on March 27, 2017 was untimely and must be dismissed.
Court of Claims Act § 10 (3-b) requires that an intentional tort claim be filed and served within 90 days after the accrual of the claim unless a notice of intention to file a claim is served within that time period, "in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim." The defense that a claim was untimely served and/or filed "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" (Court of Claims Act § 11 [c]; see also Sinacore v State of New York, 176 Misc 2d 1 [1998]). In its answer to the claim, defendant raised as its first and second affirmative defenses that the claim is untimely because "neither the claim nor a notice of intention was served within ninety (90) days of the accrual of the claim" as required by either Court of Claims Act § 10 (3) (defendant's Exhibit B, first affirmative defense) or Court of Claims Act § 10 (3) (b) (id. at second affirmative defense).
To the extent defendant contends that although a notice of intention was timely served, the claim was not served within one year after the claim accrued as required, the defendant's first and second affirmative defenses failed to set forth this defense with sufficient particularity (see Sinacor, at 9). While defendant raised as a defense the claimant's purported failure to serve either a notice of intention or a claim within 90 days of accrual, it now concedes the claimant's timely service of a notice of intention and the answer does not assert as a defense the claimant's failure to file or serve the claim within one year of accrual as required by Court of Claims Act § 10 (3-b). In addition, by erroneously citing Court of Claims Act§ 10 (3) (b), which is a non-existent subsection, rather than Court of Claims Act § 10 (3-b) applicable to intentional torts, the defendant waived its objection to the timeliness of the claim under Court of Claims Act § 10 (3-b) (see Court of Claims Act §11 [c]; Butler v State of New York, UID No. 2013-015-550 [Ct Cl, Collins, J., Feb. 11, 2013]).
Nevertheless, defendant's seventh affirmative defense asserts "[t]his claim is barred by the applicable statute of limitations" and it is undisputed that the instant claim was not served and filed until March 27, 2017, well beyond the statutory limitations period (see CPLR 215 [3]). In Trayer v State of New York (90 AD2d 263 [1982]) the Appellate Division, Third Department, noted the constitutional procription regarding the payment of claims against the State, "which, as between citizens of the state, would be barred by lapse of time" (NY Const, art III, § 19) and held that in addition to the time limitations contained in Court of Claims Act § 10, those seeking to sue the State for intentional torts must also "comply with CPLR 215 (subd 3) or risk having their claim dismissed if a timely Statute of Limitations defense is raised" (id. at 268). Thus, even where the defendant waives the defense that the claim was not served or filed within the time limitations set forth in Court of Claims Act § 10 (3-b), failure to comply with the applicable Statute of Limitations may nevertheless result in dismissal where the defense is adequately preserved (see Firth v State of New York, 184 Misc 2d 105, 110 [Ct Cl 2000], affd 287 AD2d 771 [3d Dept 2001], affd 98 NY2d 365 [2002]). Such a defense was raised here and, given the relevant dates, bears merit. As a result, the instant claim must be dismissed as barred by the Statute of Limitations set forth in CPLR 215 (3).
The constitutional prohibition against the payment of claims against the State which would be barred against citizens of the State is reflected in Court of Claims Act § 12 (2), which provides: "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."
Accordingly, defendant's motion Number M-90469 is granted and the claim is dismissed. Claimant's motion numbers M-90432 and M-90505 are denied as academic.
June 23, 2017
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered: 1. Claimant's notice of motion dated May 9, 2017 (motion number M-90505); 2. Claimant's unsworn statement in support dated May 9, 2017 (motion number M-90505); 3. Claimant's Motion for Appointment of Counsel dated May 18, 2017 (motion number M- 90432); 4. Defendant's Notice of Motion dated May 19, 2017 (motion no. M-90469); 5. Affirmation of Michael C. Rizzo in support of motion dated May 19, 2017 with exhibits 1 and 2 (motion no. M-90469); 6. Claimant's response to dismissal motion, dated May 22, 2017, with attachments (motion no. M-90469); 7. Claimant's "Reply Answer" dated June 1, 2017, with exhibits (motion no. M-90469).