NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6550
SPONSOR: Weprin (MS) TITLE OF BILL: An act to amend the civil practice law and rules, in
relation to certain notices of claim, pleading an affirmative defense
and making a motion to dismiss
This is one in a series of measures being introduced at the request of
the Chief Administrative judge upon the recommendation of her Advisory
Committee on Civil Practice.
This measure would amend CPLR 3018 and 3211 governing the practice
requirements for responses to certain notices of claim as set forth
below.
SUMMARY F PROVISIONS: This measure would (1) require objections
relating to the timeliness or manner of service or filing of a notice of
claim to be pleaded as an affirmative defense, and (2) provide that any
such objection is waived unless the party asserting it moves for
dismissal within 90 days of serving his or her answer or other respon-
sive pleading.
In other words, the same "Use It or Lose It" rule that now applies to
objections based upon alleged lack of personal jurisdiction and to
alleged defects in service of process would be extended to procedural
objections concerning the notice of claim, but with the difference that
the movant will have 90 days rather than 60 days to make the motion.
just as is now true of motions that allege defects in personal jurisdic-
tion or service of process, a court could extend the deadline "upon the
ground of hardship."
This measure would not address or alter the circumstances in which a
notice of claim is required, Nor would it alter the required content of
such notices. The measure would not alter proceedings in the Court of
Claims and therefore would not affect the State.
Apart from the amendments concerning notice of claim objections, the
measure would fill an apparently unintended gap in CPLR 3211(e) so as to
specify that dismissal motions premised upon CPLR 3211(a)(11) - i.e.,
that the allegedly liable party is immune from liability under the Not-
For-Profit Corporation Law.- may be made at any time.
AMENDMENTS CONCERNING NOTICE OF CLAIM OBJECTIONS
The amendments concerning notice of claim objections would (1) promote
dispositions of actions on their merits, (2) curtail dismissals obtained
by delayed objections to an alleged failure to serve a notice of claim,
and, (3) reduce waste of judicial resources.
Currently, every or virtually every village, town, municipal corpo-
ration, and public . authority enjoys the benefit of some notice of
claim provision. Typically, as is the case with those municipal entities
that enjoy the protection of General Municipal Law § 50-e, the would-be
plaintiff is not permitted to bring suit with respect to a given claim
unless the plaintiff (1) timely served a notice of claim detailing the
basic facts of the claim, and (2) afforded the municipal entity an
opportunity to question the plaintiff concerning the claim.
Generally, a notice of claim must be served within 90 days of the events
on which the claim is premised. However, there are literally hundreds of
such notice of claim statutes and they can vary regarding which individ-
uals should be served, the information that must be provided, the time
by which the notice must be served, and the time within which an appli-
cation to permit late notice must be made.
Under current law, a municipal defendant that knows that service of the
notice of claim was defective has no obligation to raise the objection
in timely fashion and may literally wait years to do so. This problem
is most dramatically illustrated in the ruling in Scantlebury v. NYCHHC,
4 N.Y.3d 606 (2005). In Scantlebury, plaintiff Janet Scantlebury claimed
that the defendant's Kings County Hospital committed medical malpractice
and had thus injured her. She served a notice of claim on November 3,
1999, while she was still in the hospital. Unfortunately, she served the
Comptroller of the City of New York, who was not authorized to receive
service of the notice of claim. Instead of raising any objection at that
time, the Comptroller demanded a § 50-h hearing, which was held on July
19, 2000. Plaintiff next commenced her action in August of 2000. The
parties began and eventually completed discovery. It was not until
February of 2003, right after plaintiff filed a note of issue, that HHC
moved for dismissal based upon the defective service of the notice of
claim. In moving for dismissal, HHC did not advance any excuse for its
delay. However, it argued that none of that mattered; and the Court of
Appeals agreed with that position, dismissing plaintiff's action.
The purpose of the notice of claim provisions is to provide munici-
palities with the opportunity to timely investigate claims, not to
provide them with the means to obtain dismissals. If there was a service
error of some sort and the time to correct the error has not passed,
there is no reason why the plaintiff should not be given the opportunity
to correct the error. Nor is there any reason why a municipality cannot
be fairly expected to "use or lose" its notice of claim objections. Nor
is there any reason why a municipality should be allowed to sit silently
through years of litigation - including conferences attended by judges
or their staff, motions read and resolved by judges and their staffs,
appeals consuming court time and resources, and even trials - before
raising a dispositive objection that could have been raised years earli-
er.
AMENDMENT CONCERNING CPLR 3211(A)(11) MOTIONS
CPLR 3211(a) specifies the grounds on which a party may move to dismiss
a claim. Currently, it contains eleven numbered paragraphs, each setting
forth one or more bases on which a motion to dismiss may be made. This
measure would add a twelfth paragraph, for motions premised upon notice
of claim objections.
CPLR 3211(e) specifies the times in which each of the various 3211(a)
motions may or must be made. The deadlines vary greatly. At one extreme,
certain motions, such as alleged lack of personal jurisdiction, can be
waived even prior to filing of the party's initial pleading. At the
other extreme, certain objections, including alleged failure to state a
cause of action, may be raised at any time.
The problem is that, for no discernible reason, CPLR 3211(e) expressly
addresses only ten of the eleven paragraphs in CPLR 3211(a). It says
nothing at all about paragraph eleven. That paragraph authorizes a
motion to dismiss on the ground that "the parry is immune from liability
pursuant to section seven hundred twenty-a of the not-for-profit corpo-
ration law."
In the absence of any specific directive, the Appellate Division has
ruled (1) that the general language of the first sentence of CPLR
3211(e) dictates that a motion premised upon CPLR 3211(2)(11) must be
made even before the would-be movant's filing of its initial pleading,
but (2) the would-be movant can still move for summary judgment under
CPLR 3212 if it misses the 3211(e) deadline. Woodford v. Benedict Commu-
nity Center, 176 A.D.2d 1115 (3rd Dep't 1991). While the latter half of
the ruling makes the first half more palatable, the easily waivable
nature of the 3211(a)(11) option largely defeats the Legislature's
purpose in enacting the provision in the first place.
This measure would amend CPLR 3211(e) to expressly address motions prem-
ised upon CPLR 3211(a)(11), providing that such motions could be made at
any time, as with a motion premised upon alleged failure to state a
cause of action.
This measure would have no fiscal impact on the State. It would take
effect on the first day of January next succeeding the date on which it
shall have become law and shall apply to all actions commenced on or
after that effective date.
LEGISLATIVE HISTORY: None. New proposal.
