New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2001-011-608, Claim No. 104625, Motion No. M-64077


Synopsis


Claimant's motion to strike an affirmative defense asserted in the answer is granted.

Case Information

UID:
2001-011-608
Claimant(s):
FELIBERTO RIVERA, JR.
Claimant short name:
RIVERA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104625
Motion number(s):
M-64077
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Feliberto Rivera, Jr., Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 26, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant has moved to strike an affirmative defense asserted in the answer. In thechallenged defense defendant has asserted that the claim should be dismissed for lack of subject matter jurisdiction because it is not verified.

A motion to dismiss defenses may be made on the ground that a defense is not stated or has no merit (CPLR 3211[b]). On a motion to dismiss a defense pursuant to CPLR 3211 (b), all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the proof submitted (Capital Tel. Company v M C E, Inc., 208 AD2d 1150).

Defendant asserts that verification of a claim is a non-waivable requirement which affects the subject matter jurisdiction of the court. However, under CPLR 3022 a party entitled to a verified pleading may treat an unverified pleading as a nullity provided that notice is given with due diligence to the adverse party of the election to do so. Due diligence has been held to mean within 24 hours of its receipt ( Matter of Lentlie v Egan, 94 AD2d 839, affd 61 NY2d 874). No showing has been made that the claim was rejected within 24 hours of its receipt nor is there any evidence that defendant was unduly prejudiced by the defect and thus, the defect is deemed waived (see, Matter of Maynard v Wait, 246 AD2d 853). Accordingly, the motion is granted and the affirmative defense of lack of subject matter jurisdiction based on failure to verify the claim is stricken.

November 26, 2001
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Submitted:

  1. Notice of Motion dated September 6, 2001
  2. Affidavit in Support of Feliberto Rivera, Jr. sworn to the 6th day of September, 2001
  3. Letter response of Glenn C. King, Esq. dated October 10, 2001