New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2002-019-552, Claim No. 104490, Motion No. M-65360


Synopsis


State's motion for dismissal based upon failure to verify claim is granted.


Case Information

UID:
2002-019-552
Claimant(s):
DAVID JONES
Claimant short name:
JONES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104490
Motion number(s):
M-65360
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
DAVID JONES, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: James E. Shoemaker, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
July 24, 2002
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The State of New York (hereinafter "State") moves for an order dismissing the claim based upon Claimant's failure to serve and file a verified claim pursuant to Court of Claims Act (hereinafter "CCA") 11 . Claimant, an inmate appearing pro se, opposes the motion.[1]


The Court has considered the following papers in connection with this motion:
1. Claim, filed June 28, 2001.
2. Notice of Motion No. M-65360, dated June 14, 2002, and filed June 17, 2002.
3. Affirmation of James E. Shoemaker, AAG, in support of motion, dated June 14, 2002, with attached exhibit.
4. "Notice of Answer, to Stay Motion", dated June 17, 2002, and filed June 24, 2002.
5. Affidavit of David Jones, in opposition to motion, sworn to June 19, 2002.

Claimant alleges that the State committed medical malpractice by improperly terminating his medication during his incarceration at Southport Correctional Facility (hereinafter "Southport") on March 30, 2001. The State represents that it was served with a Notice of Intention by certified mail, return receipt requested, on June 29, 2001.[2] This Claim was filed with the Clerk of the Court on June 28, 2001 and served on the Attorney General's office by certified mail, return receipt requested, on June 29, 2001. By way of this motion, the State seeks dismissal of the Claim because it lacks a verification pursuant to CCA 11 (b).


Although this Claim contains Claimant's signature, his signature is not notarized and, more importantly, there is no verification as 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. (Martin v State of New York, 185 Misc 2d 799). As such, this Court may not make allowances for this defect to be cured by way of an amendment. (Grande v State of New York, 160 Misc 2d 383). Accordingly, Claim No. 104490 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). For that matter, if the Notice of Intention served by Claimant was properly verified, which the Court cannot ascertain as it was not provided a copy, then he would have two years after accrual to file and serve a new verified claim pursuant to CCA 10 (3) without the need for a late filing application.


Accordingly, for the reasons stated above, it is ORDERED that State's motion to dismiss, Motion No. M-65360, is GRANTED and Claim No. 104490 is DISMISSED.


July 24, 2002
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]Claimant's opposing papers contain a request for a "motion to stay of claim". These opposing papers have not been treated as a cross-motion, but rather accepted as Claimant's affidavit in opposition to the State's motion.
[2]The Court has not been provided with a copy of said Notice of Intention.