New York State Court of Claims

New York State Court of Claims

HOLMAN v. STATE OF NEW YORK, #2002-018-197, Claim No. 101699, Motion No. M-65652


Synopsis


Defendant's motion to dismiss is denied. Defendant was served with an unverified copy of the claim. The Uniform Rules for the Court of Claims [22NYCRR] §206.5(a) states that the original claim shall be filed. It is the filed original claim which must bear the complete verification.

Case Information

UID:
2002-018-197
Claimant(s):
KENNETH HOLMAN
Claimant short name:
HOLMAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101699
Motion number(s):
M-65652
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
THE PROSKIN LAW FIRMBy: PETER L. SANDERS, ESQUIRE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 13, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
This case comes before the Court for two separate issues. First, at the Court'
s direction, the Proskin Law Firm has provided an affirmation substantiating their position that they are entitled, on behalf of claimant, to an adjournment of the trial which was scheduled for July 11, 2002. On that date, claimant advised the Court that he was not prepared to go forward without an attorney from the Proskin Law Firm whom he had allegedly retained to represent him. No notice of appearance has been filed by the Proskin Law Firm on behalf of claimant. Defendant strenuously opposed any adjournment and vigorously argued that there was no indication that claimant was represented by counsel and the Court should not adjourn the trial so that counsel can step in at this late juncture. The Court received an affirmation from Peter L. Sanders, Esquire, of counsel to the Proskin Law Firm on behalf of claimant. Defendant, by Joel L. Marmelstein, Assistant Attorney General, submitted an affirmation in opposition.
Defendant has also brought a motion to dismiss the claim. The motion was served on claimant and Peter L. Sanders, Esquire of the Proskin Law Firm. Claimant's counsel has not submitted any opposition to the motion; however, claimant himself, submits a letter dated November 4, 2002 asking the Court to consider the case of
Martin v State of New York , 185 Misc 2d 713.
Addressing the trial adjournment first, after reviewing the affirmation and supporting documents submitted it appears to the Court that claimant's position on the day of trial that he was represented by counsel was what both he and the Proskin Law Firm believed to be true. Although the Court does not condone the Proskin Firm's peripheral representation, the Court cannot punish claimant for the failures of his counsel.

Turning to defendant's motion, which seeks an order dismissing the claim for lack of subject matter jurisdiction, defendant argues that the claim which was served upon the Attorney General was not verified; and as a result, the claim fails to comply with the jurisdictional requirements of Court of Claims Act §11(b) and must be dismissed.

Court of Claims Act §11(b) provides in pertinent 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 supreme court." The requirement for verification, like the other requirements of Court of Claims Act §11, is a jurisdictional mandate and the lack of compliance deprives this Court of the authority to hear the claim (
Martin v State of New York, 185 Misc 2d 799; Williams v State of New York, Ct Cl, J. Collins, dated August 17, 2001, Claim No. 102081, Motion Nos. M-63063, M-63531, UID No. 2001-015-171tttt[t]; Malloy v State of New York, Ct Cl, Presiding J. Read, dated December 10, 2001, Claim No. 104933, Motion No. M-64215).
In this case, unlike the cases cited above, although defendant's copy of the claim was not verified, the original claim filed with the Clerk's office was verified. The question to be addressed is whether the failure to serve a verified copy of the claim upon the defendant is a jurisdictional defect which requires dismissal.

Although the issue of service of a verified pleading rarely arises in this age of new technology where usually the original is executed, copied and then the copies are served upon defendant, it is the original document which must bear the complete verification. Court of Claims Act §11(a) states in relevant part "[t]he claim shall be filed with the clerk of the Court; and ..., a
copy shall be served..." [emphasis added]. The Uniform Rules for the Court of Claims [22 NYCRR] §206.5(a) states that the original claim shall be filed. It is this filed original claim which must bear the complete verification (See, Scaringe v Kinley, 154 AD2d 836; see also Siegel, NY Prac §234, at 375 [3d ed]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3022:3; but see, Crimmins v Polhemus, 189 Misc 183).
Accordingly, based upon the foregoing, claimant's counsel, the Proskin Law Firm, is directed to file a notice of appearance and a note of issue and certificate of readiness within 20 days of the date this order is filed with the Clerk of the Court, or this Court will consider, upon motion, the imposition of sanctions. Defendant's motion to dismiss is DENIED.


December 13, 2002
Syracuse, New York

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

The Court has considered the following in deciding this motion:

Affirmation of Peter L. Sanders, in support of an adjournment

of the trial.............................................................................1


Affirmation of Joel L. Marmelstein, Assistant Attorney General

in opposition to adjournment................................................2


Notice of Motion...............................................................................3


Affirmation of Joel L. Marmelstein, Esquire, Assistant

Attorney General, in support, with exhibit attached..............4


Letter from claimant, in opposition, dated November 4, 2002..........5


Filed Documents:


Claim...................................................................................................6



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Unreported decisions of the Court of Claims may be accessed at www.nyscourtofclaims.state.ny.us/decisions.