Senate Bill S5072

2013-2014 Legislative Session

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

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Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2014	referred to judiciary
May 08, 2013	referred to judiciary

2013-S5072 (ACTIVE) - Details

See Assembly Version of this Bill:: A6550
Current Committee:: Senate Judiciary
Law Section:: Civil Practice Law and Rules
Laws Affected:: Amd §3018 & R3211, CPLR

2013-S5072 (ACTIVE) - Summary

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

2013-S5072 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S5072

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 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.

2013-S5072 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5072

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               May 8, 2013
                               ___________

Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
  istration) -- read twice and ordered printed, and when printed  to  be
  committed to the Committee on Judiciary

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

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision (b) of section 3018 of the civil practice law
and rules, as amended by chapter 504 of the laws of 1980, is amended  to
read as follows:
  (b) Affirmative defenses. A party shall plead all matters which if not
pleaded  would  be likely to take the adverse party by surprise or would
raise issues of fact not appearing on the face of a prior pleading  such
as  arbitration and award, collateral estoppel, culpable conduct claimed
in diminution of damages as set forth  in  article  fourteen-A  OF  THIS
CHAPTER,  discharge  in  bankruptcy,  facts showing illegality either by
statute or common law, fraud, infancy or other disability of  the  party
defending, payment, release, res judicata, statute of frauds, or statute
of limitation, OR FAILURE TO SERVE A NOTICE OF CLAIM OR FAILURE TO PROP-
ERLY OR TIMELY SERVE A NOTICE OF CLAIM. The application of this subdivi-
sion shall not be confined to the instances enumerated.
  S  2.  Subdivisions (a) and (e) of rule 3211 of the civil practice law
and rules, paragraph 5 of subdivision (a) as amended by judicial confer-
ence proposal number 6 for the year 1964, paragraph  11  of  subdivision
(a) as amended by chapter 656 of the laws of 1991 and subdivision (e) as
amended  by  chapter  616  of  the  laws of 2005, are amended to read as
follows:
  (a) Motion to dismiss cause of action.
  A party may move for judgment dismissing one or more causes of  action
asserted against him OR HER on the ground that:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09835-01-3

S. 5072                             2

  1. a defense is founded upon documentary evidence; or
  2.  the  court has not jurisdiction of the subject matter of the cause
of action; or
  3. the party asserting the cause of action has not legal  capacity  to
sue; or
  4.  there  is  another action pending between the same parties for the
same cause of action in a court of any state or the United  States;  the
court  need  not  dismiss  upon  this  ground but may make such order as
justice requires; or
  5. the cause of action may not be maintained  because  of  arbitration
and  award,  collateral  estoppel,  discharge  in bankruptcy, infancy or
other disability of the moving party, payment,  release,  res  judicata,
statute of limitations, or statute of frauds; or
  6.  with  respect to a counterclaim, it may not properly be interposed
in the action; or
  7. the pleading fails to state a cause of action; or
  8. the court has not jurisdiction of the person of the defendant; or
  9. the court has not jurisdiction in an action where service was  made
under  section  [314]  THREE  HUNDRED  FOURTEEN  or  [315] SECTION THREE
HUNDRED FIFTEEN OF THIS CHAPTER; or
  10. the court should not proceed in the absence of a person who should
be a party[.]; OR
  11. the party is immune  from  liability  pursuant  to  section  seven
hundred  twenty-a  of  the  not-for-profit  corporation law. Presumptive
evidence of the status of the corporation, association, organization  or
trust under section 501 (c) (3) of the internal revenue code may consist
of  production  of  a  letter  from  the  United States internal revenue
service reciting such determination on a preliminary or final  basis  or
production  of  an  official publication of the internal revenue service
listing the corporation, association, organization or trust as an organ-
ization described in such section, and presumptive evidence of uncompen-
sated status of the defendant may consist of an affidavit of  the  chief
financial  officer  of  the  corporation,  association,  organization or
trust. On a motion by a defendant based upon this  paragraph  the  court
shall  determine  whether  such  defendant is entitled to the benefit of
section seven hundred twenty-a of the not-for-profit corporation law  or
subdivision  six  of  section 20.09 of the arts and cultural affairs law
and, if it so finds, whether there is a reasonable probability that  the
specific  conduct of such defendant alleged constitutes gross negligence
or was intended to cause the resulting harm. If the court finds that the
defendant is entitled to the benefits of that section and does not  find
reasonable probability of gross negligence or intentional harm, it shall
dismiss the cause of action as to such defendant; OR
  12.  IN AN ACTION IN WHICH SERVICE OF A NOTICE OF CLAIM IS A CONDITION
PRECEDENT TO THE COMMENCEMENT OF THE ACTION, THE NOTICE OF CLAIM WAS NOT
SERVED OR WAS NOT PROPERLY OR TIMELY SERVED.
  (e) Number, time and waiver of objections; motion to  plead  over.  At
any  time before service of the responsive pleading is required, a party
may move on one or more of the grounds set forth in subdivision  (a)  OF
THIS  RULE,  and  no  more  than one such motion shall be permitted. Any
objection or defense based upon a ground set forth  in  paragraphs  one,
three,  four,  five  and  six  of subdivision (a) OF THIS RULE is waived
unless raised either by such motion or in  the  responsive  pleading.  A
motion  based  upon a ground specified in paragraph two, seven [or], ten
OR ELEVEN of subdivision (a) OF THIS RULE may be made at any  subsequent
time  or in a later pleading, if one is permitted; an objection that the

S. 5072                             3

summons and complaint, summons with notice, or notice  of  petition  and
petition  was  not  properly  served is waived if, having raised such an
objection in a pleading, the objecting party does not move for  judgment
on  that ground within sixty days after serving the pleading, unless the
court extends the time upon the ground of undue hardship. The  foregoing
sentence  shall not apply in any proceeding under subdivision one or two
of section seven  hundred  eleven  of  the  real  property  actions  and
proceedings  law. The papers in opposition to a motion based on improper
service shall contain a copy of the proof of  service,  whether  or  not
previously  filed.  An  objection based upon a ground specified in para-
graph eight [or], nine OR TWELVE of subdivision  (a)  OF  THIS  RULE  is
waived  if  a party moves on any of the grounds set forth in subdivision
(a) OF THIS RULE without raising such objection or if,  having  made  no
objection  under  subdivision (a) OF THIS RULE, he or she does not raise
such objection in the responsive pleading. AN  OBJECTION  BASED  UPON  A
GROUND  SPECIFIED IN PARAGRAPH TWELVE OF SUBDIVISION (A) OF THIS RULE IS
ALSO WAIVED IF THE OBJECTING PARTY FAILS TO MOVE FOR  JUDGMENT  ON  THAT
GROUND  WITHIN  NINETY DAYS AFTER SERVING THE PLEADING, UNLESS THE COURT
EXTENDS THE TIME UPON THE GROUND OF UNDUE HARDSHIP.
  S 3. This act shall take effect on the first of January next  succeed-
ing  the date on which it shall have become a law and shall apply to all
actions commenced on or after such effective date.

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Senate Bill S5072

Sponsored By

Archive: Last Bill Status - In Senate Committee Judiciary Committee

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2013-S5072 (ACTIVE) - Details

2013-S5072 (ACTIVE) - Summary

2013-S5072 (ACTIVE) - Sponsor Memo

2013-S5072 (ACTIVE) - Bill Text download pdf

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Sponsored By

John J. Bonacic

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Actions

2013-S5072 (ACTIVE) - Details

2013-S5072 (ACTIVE) - Summary

2013-S5072 (ACTIVE) - Sponsor Memo

2013-S5072 (ACTIVE) - Bill Text download pdf

Comments