New York State Court of Claims

New York State Court of Claims

PUGLIESE v. THE STATE OF NEW YORK, #2001-009-045, Claim No. 99992, Motion No. M-63678


Defendant's motion to dismiss the claim based upon the failure of the claimant to verify the claim was granted, based upon Martin v State of New York, 185 Misc 2d 799.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 24, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought a motion seeking an order dismissing the claim.

The following papers were considered by the Court in connection with this motion:
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 dismiss.

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 2d 799).

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.[1]

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.

September 24, 2001
Syracuse, New York

Judge of the Court of Claims

[1] In any event, and as noted above, the defendant raised the issue of lack of verification as an affirmative defense in its answer.