POSTELL v. THE STATE OF NEW YORK, #2002-015-254, Claim No. 105264, Motion Nos.
M-64519, M-64674, M-64792
State's pre-answer motion to dismiss claim for lack of jurisdiction granted
where claimant failed to verify a properly served notice of intention and then
failed to properly serve his verified claim. Claimant's opposition to the
motion presented on a motion is denied as is a third motion brought by claimant
to dismiss a purported cause of action in the defendant's pre-answer
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
M-64519, M-64674, M-64792
FRANCIS T. COLLINS
Steven Postell, Pro Se
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
May 21, 2002
See also (multicaptioned
The State's pre-answer motion to dismiss the claim (M-64519) based upon the
Court's lack of jurisdiction is granted and the claim is dismissed. Claimant's
opposition to the State's motion, presented as a motion pursuant to CPLR 3211
(b) to dismiss "defenses contained in the respondent's pre-answer motion"
(M-64674) is denied and claimant's subsequent motion (M-64792) purportedly made
pursuant to CPLR 3211 (a) (3) to dismiss a cause of action alleged in
defendant's pre-answer motion to dismiss the claim on the ground that the
defendant lacks the capacity to sue is likewise denied. The instant claim by a
pro se inmate seeks to recover $975,000.00 in damages for personal injuries
allegedly sustained on June 14, 2001 as a result of a slip and fall in the B
Dorm shower area of Oneida Correctional Facility in Rome, New York. The claim
does not set forth the alleged time of the accident but seeks to impose
liability upon the State due to the slippery condition of the shower area floor
and upon the State's failure to provide non-slip mats or to supply the claimant
with no-slip shower shoes.
The facts underlying the motions are not in dispute. The parties contest the
legal effect of claimant's admitted failure to verify a notice of intention to
file a claim which was served upon the Attorney General by certified mail,
return receipt requested and claimant's subsequent failure to timely serve a
verified claim upon the Attorney General in a manner authorized by Court of
Claims Act § 11 (a) (i).
In claimant's opposition to the State's motion, framed as two separate motions,
claimant argues that his failure to verify the notice of intention is not a
jurisdictional defect requiring dismissal of the claim. He asserts that the
total absence of a verification is akin to the submission of a defective
verification which was rejected as a basis for dismissal in a 1974 decision
entitled Williams v State of New York, 77 Misc 2d 396. He further argues
that the State's motion to dismiss the claim premised upon the alleged improper
service of the verified claim is premature since claimant allegedly obtained a
two year extension of time to file and serve his claim as a result of his
service of the unverified notice of intention.
Finally, the claimant asserts that the alleged defects cited by the defendant
were cured by service of both a verified notice of intention and a verified
claim following receipt of the defendant's motion as evidenced by an affidavit
of service attached to claimant's motion (M-64674) as Exhibit A. The Court
notes that the affidavit of service specifies neither the date of the alleged
service nor whether service was effected by either of the methods prescribed by
Court of Claims Act § 11 (a) (i).
In claimant's second motion (M-64792) he alleges that the State waived its
right to reject the unverified notice of intention to file a claim by failing to
notify claimant with due diligence, i.e., within 24 hours of the receipt of the
notice, that the State intended to treat the unverified pleading as a nullity
pursuant to CPLR 3022. Claimant further argues on this motion, as on his
earlier motion (M-64674), that any defect arising from either the lack of
verification of the notice of intention or from improper service of the claim
was cured by claimant's re-service of a verified notice of intention and a
verified claim. Claimant requests dismissal of the jurisdictional
Defense counsel correctly argues in opposition to motion (M-64792) that the
defendant has not asserted a cause of action against the claimant in its
pre-answer motion to dismiss which would properly be the subject of a motion to
dismiss. Moreover, the State argues that its jurisdictional defenses arising
from claimant's failure to verify the notice of intention and his subsequent
failure to timely serve his verified claim in a manner authorized by Court of
Claims Act § 11 (a) (i) were properly raised with particularity in the
State's pre-answer motion.
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 one reported case
(Vogel v State of New York, 187 Misc 2d 186) the Court 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 in that case
had waived its jurisdictional objection by failing to make a pre-answer motion
to dismiss on that ground or to raise the defense in its responsive
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
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
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 July 10, 2001
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, 185 Misc 2d 799, 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 received by the Attorney
General on November 28, 2001 was not served and filed within ninety days of
accrual as required.
Accordingly, the defendant's motion is granted and the claim is dismissed.
Claimant's motions are denied.
May 21, 2002
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
The Court considered the following papers:
Notice of motion (M-64519) dated January 4, 2002;
Affirmation of G. Lawrence Dillon dated January 4, 2002 with exhibits;
Notice of motion (M-64674) dated January 11, 2002;
Affidavit of Steven Postell sworn to January 16, 2002, with exhibits;
Reply to claimant's motion to dismiss defenses dated February 19, 2002;
Affirmation of G. Lawrence Dillon dated February 19, 2002 with exhibits;
Notice of motion (M-64792) dated February 22, 2002;
Affidavit of Steven Postell sworn February 25, 2002;
Reply to claimant's motion to dismiss cause of action dated February 27,
Affirmation of G. Lawrence Dillon dated February 27, 2002 with exhibits.
Claimant's affidavit in support of motion
(M-64792) alleges such service was effected by certified mail, return receipt
requested, but fails to provide the date service was accomplished.