New York State Court of Claims

New York State Court of Claims

CARPENTER v. THE STATE OF NEW YORK, #2002-015-233, Claim No. 105065, Motion No. M-64462


Synopsis


Claimant's failure to verify notice of intention fatal to claim which was verified but untimely served and filed. Court found that lack of verification of notice of intention was jurisdictional defect properly raised in this pre-answer motion.

Case Information

UID:
2002-015-233
Claimant(s):
ABDULLAH CARPENTER
Claimant short name:
CARPENTER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105065
Motion number(s):
M-64462
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Abdullah Carpenter, Pro SeNo Appearance
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 28, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The State's pre-answer motion to dismiss the claim based upon the Court's lack of jurisdiction is granted without prejudice to a timely application for late claim relief pursuant to Court of Claims Act § 10 (6). The instant claim seeks to recover $20,000,000.00 in damages for personal injuries allegedly sustained on May 5, 2000 as a result of a battery by an unknown fellow inmate at Mid-State Correctional Facility at Marcy, New York; and for damages for alleged medical malpractice and/or medical negligence arising from the treatment claimant received following the attack. On May 24, 2000 claimant, by certified mail, return receipt requested, served an unverified notice of intention to file a claim bearing an obviously erroneous date of September 23, 2000. The unverified notice of intention (Movant's Exhibit A) was received by the Attorney General's Claims Bureau on May 26, 2000 and set forth facts related solely to the purported battery of claimant by another inmate. No mention was made therein of facts related to a cause of action sounding in medical malpractice or medical negligence.[1]

On November 13, 2001 the Attorney General's Office received a verified claim served by certified mail, return receipt requested. The claim (Movant's Exhibit B) contains factual allegations regarding the alleged battery and new allegations related to medical care and treatment purportedly rendered at approximately 10:00 p.m. on May 5, 2000 at the Mid-State Correctional Facility Clinic and at some later time at an unspecified hospital to which claimant was allegedly transported. Claimant alleges that he suffered emotional harm as a result of the battery and that he sustained nerve damage from the care and treatment received at the hospital.

Defense counsel in this pre-answer motion seeks dismissal of the claim on the ground that the claim was untimely served and filed pursuant to Court of Claims Act § § 10 and 11 because the notice of intention served on the Attorney General on May 24, 2000 was unverified and therefore legally defective. Counsel further asserts that the claim should be dismissed because it fails to state a cause of action due to a lack of specificity regarding the defendant's purported acts of negligence.

It appears on this record that claimant was served with the motion on December 17, 2001[2] but has failed to oppose it.

Other Courts have grappled with the legal effect of the claimant's failure to verify a claim (see, Martin v State of New York, 185 Misc 2d 799 and Pugliese V State of New York, Ct Cl, September 24, 2001 [Claim No. 99992, Motion No. M-63678], Midey, J., unreported). In fact, one reported case (Vogel v State of New York, 187 Misc 2d 186) has addressed the legal effect of a claimant's failure to verify a notice of intention to file a claim but denied dismissal on that ground finding that the State had waived its jurisdictional objection.

Like Vogel the question presented here is whether a timely served but unverified notice of intention may act to extend the time for service and filing of what would otherwise be an untimely verified claim. Unlike that case, the defendant herein has asserted its timeliness defense with particularity in a pre-answer motion to dismiss.

The time provided for service of a notice of intention and/or service and filing of a claim grounded in negligence is prescribed in Court of Claims Act § 10 (3) which provides:
A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.
While subdivision (3) of section 10 does not require that a claim or notice of intention be verified, such a direction can be found in Court of Claims Act § 11 (b):
b. The claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed. A claim for the appropriation by the state of lands, or any right, title or interest in or to lands shall include an inventory or itemized statement of fixtures, if any, for which compensation is claimed. The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated. The 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 relevant provisions of the CPLR regarding verification of a pleading are contained in § 3020 (a) and Rule 3021 which respectively provide:

§ 3020. Verification.
(a) Generally. A verification is a statement under oath that the pleading is true to the knowledge of the deponent, except as to matters alleged on information and belief and that as to those matters he believes it to be true. Unless otherwise specified by law, where a pleading is verified, each subsequent pleading shall also be verified, except the answer of an infant and except as to matter in the pleading concerning which the party would be privileged from testifying as a witness. Where the complaint is not verified, a counterclaim, cross-claim or third party claim in the answer may be separately verified in the same manner and with the same effect as if it were a separate pleading.

Rule 3021. Form of affidavit of verification.

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.
Finally, Court of Claims Act § 11 (c) establishes the following affirmative obligation relative to preserving an objection or defense based upon failure to comply with the time limitations contained in section 10 or the manner of service requirements of section 11 (a) of the Court of Claims Act:
c. Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, or (ii) the manner of service requirements set forth in subdivision a of this section is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.
The record establishes that the notice of intention served by certified mail, return receipt requested and received by the Attorney General on May 26, 2000 was unverified. The first question to be answered is whether the defendant waived any objection to the lack of verification by failure to notify the claimant with due diligence that the notice of intention would be treated as a nullity pursuant to CPLR 3022. Despite previous case law to the contrary (see, Melesky v State of New York, 2 Misc 2d 690; Wittkugel v State of New York, 5 Misc 2d 886; see also, Mobile Health v State of New York, 149 Misc 2d 784; Williams v State of New York, 77 Misc 2d 396; Canizio v State of New York, 8 Misc 2d 943) no such waiver may be found where, as here, the issue involves a jurisdictional element of the Court of Claims Act.

In Martin v State of New York, supra, Judge Corbett determined that although a waiver of the verification requirement may have been effected for purposes of CPLR 3022 by the defendant's service of an answer to the unverified claim, the requirement contained in section 11 (b) that a notice of intention and claim be verified is a jurisdictional imperative the absence of which constitutes a fatal defect. That is a conclusion with which this Court agrees.

Where, however, the controversy involves an unverified notice of intention to file a claim the waiver provisions of Court of Claims Act § 11 (c) require that a defense premised upon untimely service and filing of a claim be asserted with particularity in either the answer or a pre-answer motion to dismiss. Here the defendant has specifically moved to dismiss the claim prior to the service of its responsive pleading alleging that the unverified notice of intention was legally ineffective to extend the time for service and filing of the claim found in Court of Claims Act § 10 (3). Having raised the issue with the requisite particularity (see Vogel, supra at 190), the defendant is entitled to dismissal in that the claim was not served and filed within ninety days of accrual as required.

Accordingly, the defendant's motion is granted and the claim is dismissed.


March 28, 2002
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated December 17, 2001;
  2. Affirmation of G. Lawrence Dillon dated December 17, 2001 with exhibits.

[1]Although not necessary for resolution of the instant motion, by virtue of the finding that the claim is jurisdictionally defective, were the Court to reach the issue only the allegations set forth in the notice of intention (viz, the battery) would be entitled to the benefit of the service and filing extension of Court of Claims Act § 10 (3). The notice could not reasonably be construed as providing timely notice to the State of the later submitted allegation of medical malpractice/negligence (see, Spearman v State of New York, Ct Cl, May 4, 2001 [Claim No.103736] Sise, J., unreported).
[2]See affidavit of service sworn to December 17, 2001.