New York State Court of Claims

New York State Court of Claims

MORRISON v. STATE OF NEW YORK, #2002-018-136, Claim Nos. 104475, 104946, Motion Nos. M-64078, M-64257, M-64339


Synopsis


Claim No. 104475, (Motion No. M-64078) was dismissed due to claimant's failure to verify, and such defect cannot be cured by an amendment. Claim No. 104946 (Motion No. M-64275) was dismissed pursuant to Court of Claims Act §§10(3) and 11. Motion No. M-64339 is denied pursuant to Court of Claims Act §10(6) and due the fact the Court cannot determine whether or not the claim appears to be meritorious.

Case Information

UID:
2002-018-136
Claimant(s):
CORDELL MORRISON
Claimant short name:
MORRISON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104475, 104946
Motion number(s):
M-64078, M-64257, M-64339
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
CORDELL MORRISONPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIRE
and EILEEN E. BRYANT, ESQUIREAssistant Attorneys General
Third-party defendant's attorney:

Signature date:
May 9, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant has filed two "claims" and a motion to serve a late claim. In one of claimant's letters, he also indicated his intent to consolidate these matters. Defendant has filed motions to dismiss both claims and opposes the late claim application.
Claim No. 104475 - Motion No. M-64078
The procedural history shows that: On June 25, 2001, a "claim" was filed in the Court of Claims Clerk's Office and was given a claim number of 104475. The claim alleges negligence on behalf of the State for assigning claimant an upper bunk at Riverview Correctional Facility on April 9, 2001. Claimant alleges a previous back and shoulder injury from a recreational accident which occurred on or about April 4, 2001. Defendant interposed an answer which was filed on July 18, 2001 in which defenses were raised for claimant's failure to sign the document, verify the document or set forth the amount claimed in damages.

Another document, deemed to be an amended claim, was filed in the Clerk's Office on August 27, 2001, and served upon an assistant attorney general on August 27, 2001. This claim was signed on August 17, 2001, and requested $3 million in damages. The defense concedes this was a timely filed amendment. However, the signature appears with a jurat only; the statutorily required verification language was omitted. (CPLR 3020(a); 3021) Among the documents attached to the amended claim was a paper, the top portion of which is titled "verification"and the bottom portion is entitled "affidavit of service." Both portions contain claimant's signature and were signed before a notary public (Vaughn J. Montroy) on May 5, 2001, approximately seven weeks before the first claim was filed. Coincidentally, one of claimant's other matters pending before this Court has the same document attached as a verification.[1]

As so succinctly stated by my colleague:
"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 Insurance
Fund
, 118 AD2d 983, 985; see also, Grande v State of
New York,
160 Misc 2d 383."


(Williams v State of New York, Ct Cl, unpublished decision of Collins, J., dated 8/17/01, Claim No. 102081, Motion No. M-63063, Court of Claims UID No. 2001-015-171)

Since the claim was not verified and the defect cannot be cured by an amendment, the claim (Claim No. 104475) is hereby DISMISSED.
Claim No. 104946 - Motion No. M-64257
The claimant filed this claim with the Clerk of the Court on September 21, 2001, apparently alleging dental malpractice while an inmate at Ulster and Riverview Correctional Facilities. He was injured during recreation and sought dental treatment which he found unsatisfactory. The injury occurred on or about April 4, 2001. Defendant has moved for dismissal on the grounds that neither a notice of intention to file a claim nor a claim was filed within 90 days as required by Court of Claims Act §§10(3) and 11, and that neither the notice of intention nor the claim were served by certified mail return receipt requested as required by Court of Claims Act §11(a).

Attached to the claim (Claim No. 104946) was a page from claimant's ambulatory health record which documents claimant's appearance at the infirmary on April 3, 2001, for trauma during recreation and includes a notation about dental treatment on April 10, 2001 at Ulster Correctional Facility. According to the claim, claimant saw a dentist at Riverview Correctional Facility for the same problem a couple of weeks later. To give claimant the latest possible accrual date, the Court will, for the purposes of this motion, deem the treatment to be continuing through May 1, 2001. Ninety days from May 1, 2001 is July 30, 2001.

The defendant attached a copy of claimant's notice of intention[2] which was received by the attorney general's office on August 27, 2001, and the claim which was received by the attorney general's office on September 27, 2001. Clearly, neither document was served timely. Additionally, the envelopes in which the documents were mailed were attached as exhibits, and there is no evidence that they were mailed certified, return receipt requested. The Court finds the notice of intention was untimely pursuant to Court of Claims Act §10(3), and not sent by certified mail, return receipt as required by Court of Claims Act §11(a)(i) thereby making it jurisdictionally defective. (Finnerty v New York State Thruway Authority, 140 AD2d 941, aff'd 75 NY2d 721) The notice of intention being a legal nullity, the service and filing of the claim were untimely as well (Court of Claims Act §10(3)). Claim No. 104946 is hereby DISMISSED.
M-64339
Claimant then moved for permission to file a late claim (Motion No. M-64339) seemingly based upon the underlying facts as contained in claim Nos. 104475 and 104946. Defendant opposes the motion.

In movant's affidavit contained in his motion for permission to file a late claim, he refers to some of the same facts that were alleged in the two claims (Claim Nos. 104475 and 104946) dismissed herein. Defendant's response to the motion addresses movant's failure to comply with various statutes. First, the assistant attorney general's copy of the motion papers lacked a notice of motion; however, the Court's papers contained an incomplete notice of motion. Secondly, and more importantly, the papers did not include a proposed claim. The State contends that without it, addressing the merits of the motion is virtually impossible, as the State cannot adequately respond to the factors of opportunity to investigate, notice of the essential facts and possible prejudice in granting the application. (Court of Claims Act §10(6)).

Furthermore, the Court cannot determine whether or not the claim appears to be meritorious, a factor it must consider in deciding a late claim application. In fact, the movant's supporting affidavit fails to set forth sufficient information to determine what the nature of the claim or claims may be. Even a review of the entire file fails to provide the Court with sufficient information to address the merits of the motion. (Cf., Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1)

The movant's application to file a late claim is DENIED without prejudice to bring an appropriate late claim application.

May 9, 2002
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court considered the following documents in deciding this motion:

Claim No. 104475 - Motion No. M-64078

Notice of Motion......................................................................................1

Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney

General with all exhibits attached thereto....................................2


Supplemental Affirmation of Joel L. Marmelstein, Esquire

Assistant Attorney General, in support .......................................3


Claim No. 104946 - Motion No. M-64257


Notice of Motion......................................................................................4


Affirmation of Eileen E. Bryant, Esquire, Assistant Attorney

General with all exhibits attached thereto....................................5


Affidavit in opposition of Cordell Morrison, Claimant...........................6


Motion No. M-64339


Notice of Motion......................................................................................7


Affidavit of Cordell Morrison in support, with all exhibits

attached thereto.............................................................................8


Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney

General, in opposition...................................................................9


[1]Claim No. 104946, M-64257, Exhibit A.
[2]Exhibit A