Relates to certain notices of claims, pleading an affirmative defense and making a motion to dismiss

This measure would amend CPLR 3018 and 3211 governing the practice requirements for responses to certain notices of claim as set forth below.

Summary of 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 responsive 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. lust as is now true of motions that allege defects in personal jurisdiction 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 corporation, 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 individuals should be served, the information that must be provided, the time by which the notice must be served, and the time within which an application 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 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 municipalities 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 earlier.

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 party is immune from liability pursuant to section seven hundred twenty-a of the not-for-profit corporation 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(a)(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 Community 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 premised 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.