Notice of Motion, Affirmation, with Exhibits 1,2
Affirmation in Opposition 3
Filed Papers: Claim.
In his filed claim, claimant seeks damages for injuries suffered by him in an
alleged assault by a fellow inmate at Auburn Correctional Facility on February
20, 1999. The claim was served on the Attorney General by certified mail,
return receipt requested, on March 15, 1999, and was filed with the Clerk of the
Court of Claims on March 16, 1999. In its answer to this claim, filed on
April 13, 1999, defendant raised as its fourth affirmative defense that
"the claim is not verified as required by CCA § 11". Defendant now brings
this motion seeking an order dismissing the claim, based upon the failure of the
claimant to verify the claim.
In his affirmation opposing this motion, claimant asserts that the Court had
previously denied an application by the defendant to dismiss the claim. The
records of this Court, however, have been searched and this Court has found no
decision or order addressing the issue raised by defendant in this motion.
Accordingly, the Court will now consider the merits of defendant's motion to
At issue in this motion is whether an unverified claim creates a jurisdictional
defect, which then subjects the claim to dismissal. Recently, in a scholarly
and detailed opinion, my esteemed and learned colleague, Hon. Donald J. Corbett,
Jr., addressed this very issue (see, Martin v State of New York, 185 Misc
In Martin, Judge Corbett examined the State's limited waiver of
sovereign immunity as it relates to the service and filing requirements set
forth in Court of Claims Act, § 11(a) and the requirements of the content
of a claim and/or a notice of intention as set forth in § 11(b). In
granting a limited waiver of sovereign immunity, the State had the right to
impose such terms and conditions as it deemed proper, including the requirement
that a claim be verified.
Since Courts have uniformly held that the requirements of Court of Claims Act,
§ 11 are jurisdictional in nature and must be strictly construed, Judge
Corbett found that the portion of § 11(b) requiring that both a claim and
notice of intention be verified is "a jurisdictional requisite of the statute,
and its absence is a fatal defect." (See, Martin v State of New York,
supra at 804).
Furthermore, Judge Corbett considered the effect of the 1990 amendment to the
Court of Claims Act, which required objections pertaining to timeliness and/or
manner of service to be raised either in the responsive pleading, or in a motion
to dismiss brought before service of the responsive pleading. (See Court of
Claims Act, § 11[c]). The failure to raise such an objection in this
manner results in a waiver of the jurisdictional defect. Judge Corbett,
however, found that the enactment of this section, which broadened the waiver of
sovereign immunity, did not extend to the other jurisdictional requirements of
§ 11. In other words, the absence of verification on a claim remains an
unwaivable jurisdictional defect.
Since this Court does not have the authority to dispense with statutory
jurisdictional requirements, this claim must be dismissed.
Accordingly, it is
ORDERED, that Motion No. M-63678 is hereby GRANTED; and it is further
ORDERED, that Claim No. 99992 is hereby DISMISSED.