3. Affirmation of James E. Shoemaker, AAG, in support of motion, dated May 28,
2002, with attached exhibit.
This Claim is based upon the State's alleged negligence and deliberate
indifference in failing to protect Claimant from an assault by another inmate
during his incarceration at Elmira Correctional Facility (hereinafter "Elmira")
on February 18, 2002. This Claim was filed with the Clerk of the Court on April
25, 2002 and served on the Attorney General's office by certified mail, return
receipt requested, on April 26, 2002.
By way of this motion, the State seeks dismissal of the Claim because it lacks
a verification pursuant to CCA 11 (b) and CPLR 3021. A review of this Claim
reveals Claimant's signature and a jurat containing the stamp and signature of a
notary public. However, there is no separate verification as required by CCA 11
(b) and described in CPLR 3021.
It is well-settled that the failure to verify a claim pursuant to CCA 11 and
CPLR 3021 is a non-waivable jurisdictional defect that may not be cured by way
of an amendment. (Martin v State of New York, 185 Misc 2d 799; Grande
v State of New York, 160 Misc 2d 383). More specifically, in Martin,
Judge Collins described the verification requirement as "[a] jurisdictional
requisite of the statute, and its absence is a fatal defect." (Martin,
185 Misc 2d at 804; see also, Malloy v State of New York, Ct Cl,
December 12, 2001, Read, P.J., Claim No. 104933, Motion No. M-64215). The
requirements of CPLR 3021 are quite clear and state, in part, that "[t]he
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
There is no doubt that this Claim does not contain a formal verification in the
form set forth in CPLR 3021. The only question is whether the inclusion of a
jurat satisfies the requirement of CCA 11 (b) calling for verification. It
appears that previous cases involving similar situations have generally, with
one exception, found the presence of a jurat does not equate to verification.
(Pinckney v State of New York, Ct Cl, January 9, 2002, Collins, J., Claim
No. 104770, Motion Nos. M-64090 & M-64218 [signature with jurat does not
equate to verification; claim dismissed]; Morrison v State of New York,
Ct Cl, May 9, 2002, Fitzpatrick, J., Claim No. 104475, Motion No. M-64078
[signature appears with jurat, but without verification; claim dismissed];
cf., Abdullah v State of New York, Ct Cl, December 7, 2001, Bell,
J., Claim No. 104525, Motion No. M-64269 [signature with jurat, but without
verification; "[i]t is nevertheless evident...that claimant understood he was
swearing to the truth of the claim...."]).
In this view of the foregoing, and cognizant of the principle enunciated in
Martin, this Court finds that the presence of a jurat, without a separate
verification, does not satisfy the requirement of CCA 11 (b) that a claim be
verified in accordance with CPLR 3021. Accordingly, inasmuch as Claim No.
105971 does not contain a verification, it is jurisdictionally defective and
must be dismissed.
Parenthetically, the Court notes that Claimant may not be without a remedy,
however, as he appears to be within the time allowed to submit a motion for
permission to file and serve a late claim pursuant to CCA 10 (6).
Accordingly, for the reasons stated above, it is ORDERED that the State's
motion to dismiss, Motion No. M-65291, is GRANTED and Claim No. 105971 is