New York State Court of Claims

New York State Court of Claims

PINCKNEY v. THE STATE OF NEW YORK, #2001-015-210, Claim No. 104770, Motion Nos. M-64090, M-64218


Failure of pro se claimant to verify claim as required by Court of Claims Act § 11 (b) renders claim jurisdictionally defective. Dismissal for lack of jurisdiction renders academic motion to dismiss for failure to properly serve claim and for summary judgment.

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-64090, M-64218
Cross-motion number(s):

Claimant's attorney:
Jeffery Pinckney, Pro Se
Defendant's attorney:

Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 9. 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's motion pursuant to Civil Practice Law and Rules (CPLR) 3211 (a) (2) and (a) (8) for an order dismissing the claim on the grounds that the Court lacks jurisdiction due to claimant's failure to verify the claim as required by Court of Claims Act (CCA) § 11 (b) or to serve the claim pursuant to one of the service methods prescribed by CCA § 11 (a) (i) is granted. The claimant's [cross] motion to strike the defendant's answer and for summary judgment is denied as moot. Both parties were advised by letter of the Clerk of the Court dated September 24, 2001 that the motion was being calendared for Wednesday, October 17, 2001. In advance of that date claimant forwarded a letter to the Clerk dated September 26, 2001 which was received on September 27, 2001 and a subsequent letter dated October 10, 2001 received on October 16, 2001 requesting an extension of time to address the State's motion based in part upon the claimant's transfer from Mid-State Correctional Facility to Lakeview Shock Incarceration Facility in Brocton, New York and difficulties related to the shipment of claimant's personal property including documents related to the claim. A third letter dated October 17, 2001 which also requested an adjournment of the State's dismissal motion was attached to claimant's motion papers (M-64218) which were received by the Clerk of the Court on October 24, 2001. The Clerk calendared the claimant's [cross] motion for Wednesday, November 21, 2001 and advised claimant and the Claims Bureau of the return date of the motion. No additional requests to adjourn either motion were made by either party. In the interests of judicial economy both motions are being considered in a single decision and order.

The Court's attention first turns to defendant's motion to dismiss the claim. Section 11 (b) of the Court of Claims Act specifically provides, in relevant part, that "[t]he claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court." The Legislature prescribed the form of the affidavit of verification to be used in a Supreme Court action in Rule 3021 of the CPLR which states:
The affidavit of verification must be to the effect that the pleading is true to the knowledge of the deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. If it is made by a person other than the party, he must set forth in the affidavit the grounds of his belief as to all matters not stated upon his knowledge and the reason why it is not made by the party.
Here the claim bears the signature of the claimant and the words "SWORN TO BEFORE ME ON 17 DAY OF August 2001," the signature of Notary Public Charles L. Youmans, a stamp indicating the County of his qualification, a State issued identification number and the expiration date of the notary commission.

The lack of verification of a claim has been determined to be a non-waivable jurisdictional defect mandating dismissal of a claim (see Martin v State of New York, 185 Misc 2d 799; Pugliese v State of New York, Ct Cl, September 24, 2001 [Claim No.99992], Midey, J., unreported; cf Vogel v State of New York, 187 Misc 2d 186). The claimant's failure to comply with the clear language of CPLR 3021 governing the verification of pleadings results in a finding that the claim herein is not, in fact, verified as required in Court of Claims Act § 11 (b). Since the claim was not properly verified it is jurisdictionally defective and the claim is, accordingly, dismissed.

The dismissal based upon the failure to properly verify the claim renders academic the consideration of the defendant's second ground; namely service of the claim by regular mail. Dismissal also renders moot claimant's [cross] motion to strike the defendant's answer and for summary judgment on the claim which seeks to recover damages for alleged medical malpractice and violation of claimant's rights under the 8th amendment to the United States Constitution.

January 9. 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion (M-64090) dated September 21, 2001;
  2. Affirmation of Joel L. Marmelstein dated September 21, 2001, with exhibits;
  3. Letter dated September 26, 2001 from Jeffery Pinckney;
  4. Notice of motion (M-64218) dated September 27, 2001;
  1. Affidavit of Jeffery Pinckney sworn to October 17, 2001, with exhibits.
6. Letter dated October 10, 2001 from Jeffery Pinckney;
  1. Letter dated October 17, 2001 from Jeffery Pinckney;

Submitted but not considered:

  1. Affidavit of Joel L. Marmelstein dated November 15, 2001;
  2. Affidavit of Cathy Britton sworn to November 27, 2001, with exhibits.
  3. Affidavit of Jeffery Pinckney sworn to December 6, 2001.