New York State Court of Claims

New York State Court of Claims

WILLIAMS v. THE STATE OF NEW YORK, #2001-015-171, Claim No. 102081, Motion Nos. M-63063, M-63531


Court dismissed pro se prisoner's claim seeking to recover for loss of personal property and for ministerial neglect when Court sua sponte discovered that the original claim had not been verified pursuant to Court of Claims Act § 11 (b) and CPLR 3021 and was therefore jurisdictionally defective and not subject to amendment.

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):
M-63063, M-63531
Cross-motion number(s):

Claimant's attorney:
Rahmir Williams, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 17, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The amended claim filed January 22, 2001 seeks to recover money damages for emotional distress stemming from the alleged improper confiscation and retention of claimant's personal property by DOCS personnel and for damage to and loss of a portion of such personal property due to the negligence and alleged ministerial neglect of DOCS personnel. The defendant, after service of its amended verified answer on February 2, 2001, moved pursuant to CPLR 3211 (a) (7) to dismiss the amended claim for failure to state a cause of action. In paragraph numbered "5" of counsel's affidavit in support of the motion he acknowledged that issue had been joined and requested that the motion be treated as one for summary judgment pursuant to CPLR 3212. The defendant's reference to CPLR 3211 was viewed as a mistake or irregularity which caused no prejudice and therefore could be disregarded by the Court (see, Hertz Corp. v Luken, 126 AD2d 446). Moreover, the Court by written notice to the parties dated April 21, 2001 advised them of the Court's intention to treat the defendant's motion as one for summary judgment pursuant to CPLR 3211 (c). The Court's notice adjourned the motion to June 20, 2001 to afford claimant an opportunity to respond to the motion (claimant had not initially opposed defendant's motion) and further provided a date for the submission of the defendant's reply affidavit, if any. Claimant responded by filing a separate motion (M-63531) seeking summary judgment awarding money damages for the loss and destruction of his property by DOCS personnel and alleging that there was no defense to the cause of action set forth in the claim and that judgment in his favor could be determined as a matter of law. The defendant opposed the claimant's motion by affirmation of counsel only.

Although not raised by the defendant on either the instant motion or the claimant's prior motion (M-62496) to amend the claim, upon its review of the amended claim the Court perceived a fatal jurisdictional defect in that neither the amended claim filed on January 22, 2001 nor the original claim filed on March 8, 2000 is verified in the same manner as a complaint in an action in the Supreme Court as required by Court of Claims Act § 11 (b)[1]. The lack of verification of a claim has been determined to be a non-waivable jurisdictional defect (see, Martin v State of New York, 185 Misc 2d 799; cf Vogel v State of New York, 187 Misc 2d 186) and it is well established that "[a] jurisdictionally defective claim is not amenable to amendment" (Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983, 985; see also, Grande v State of New York, 160 Misc 2d 383).

Having determined the existence of a non-waivable jurisdictional defect, the Court may properly raise the issue sua sponte (Fry, Matter of v Village of Tarrytown, 89 NY2d 714; see also, Finnerty v New York State Thruway Auth., 75 NY2d 721; Chapman v State of New York, 261 AD2d 814). Since claimant's original claim was not verified it was jurisdictionally defective and was not subject to the amendment previously allowed by this Court's decision and order dated December 20, 2000 and filed on December 22, 2000, (see, Manshul Constr. Corp. v State Ins. Fund , supra).

The claim must be and hereby is dismissed. This dismissal by the Court renders moot the motions of both parties.

August 17, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion (M-63036) dated February 5, 2001;
  2. Affirmation of Joel L. Marmelstein dated February 5, 2001, with exhibits;
  3. Motion [sic] of Rahmir Williams in opposition to M-63036 sworn to May 15, 2001;
  4. Notice of Motion (M-63531) dated May 15, 2001;
  5. Affidavit of Rahmir Williams sworn to May 15, 2001 with exhibits;
  6. Affirmation of Joel L. Marmelstein dated May 29, 2001.
  7. Amended claim filed January 22, 2001;
  8. Amended verified answer filed February 2, 2001;
  9. Claim filed March 8, 2000.

[1]See CPLR Rule 3021 for the prescribed form of the affidavit of verification.