New York State Court of Claims

New York State Court of Claims

POSTELL v. THE STATE OF NEW YORK, #2002-015-254, Claim No. 105264, Motion Nos. M-64519, M-64674, M-64792


Synopsis


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 motion.

Case Information

UID:
2002-015-254
Claimant(s):
STEVEN POSTELL
Claimant short name:
POSTELL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105264
Motion number(s):
M-64519, M-64674, M-64792
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Steven Postell, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 21, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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).[1]

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 "defenses".

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 pleading.

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 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
Saratoga Springs, New York

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


The Court considered the following papers:
  1. Notice of motion (M-64519) dated January 4, 2002;
  2. Affirmation of G. Lawrence Dillon dated January 4, 2002 with exhibits;
  3. Notice of motion (M-64674) dated January 11, 2002;
  4. Affidavit of Steven Postell sworn to January 16, 2002, with exhibits;
  5. Reply to claimant's motion to dismiss defenses dated February 19, 2002;
  6. Affirmation of G. Lawrence Dillon dated February 19, 2002 with exhibits;
  7. Notice of motion (M-64792) dated February 22, 2002;
  8. Affidavit of Steven Postell sworn February 25, 2002;
  9. Reply to claimant's motion to dismiss cause of action dated February 27, 2002;
  10. Affirmation of G. Lawrence Dillon dated February 27, 2002 with exhibits.

[1]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.