New York State Court of Claims

New York State Court of Claims

DEVERS v. THE STATE OF NEW YORK, #2002-028-050, Claim No. 104407, Motion No. M-65151


Defendant's motion for summary judgment is granted based upon the failure of Claimant to verify the Claim.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
DWYER & DRIBUSCH, LLPBY: Paul F. Dwyer, Esq.
Defendant's attorney:
BY: Michael C. Rizzo, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 29, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's motion for summary judgment:

  1. Notice of Motion and supporting affidavit of Assistant Attorney General
Michael C. Rizzo, filed May 6, 2002, (Rizzo Affidavit), with annexed

Exhibits 1-11 and Memorandum of Law (Defendant's Memo);

2) Affidavit in Opposition of Darrell Devers, filed June 21, 2002 (Devers Affidavit)

and Memorandum of Law (Claimant's Memo); and

3) Reply Affidavit of Assistant Attorney General Michael C. Rizzo, filed July 2, 2002, (Rizzo Reply).

Filed Papers: Claim filed June 12, 2001; Answer filed June 22, 2001; Amended Claim filed January 28, 2002 and Answer to Amended Claim filed February 25, 2002.

On June 12, 2001, Darrell Devers (Claimant) filed this action in which he seeks damages for his alleged false arrest and malicious prosecution. The Defendant has moved for summary judgment asserting that the arrest and prosecution was based upon probable cause and on the basis the Court lacks subject matter jurisdiction as the Claim was unverified. Claimant opposes the motion asserting material questions of fact exist regarding whether the arresting trooper had probable cause. Claimant also asserts the Claim was verified, albeit defectively, and the Defendant failed to reject the pleading, thereby waiving the defect.

The following recitation of facts is based upon the Court's review of the papers submitted in connection with the instant motion. Claimant was hired by North American Industrial Services (NAIS) in September 1999 as a pilot. At the time of his hire, Claimant was issued a cell phone, pager, credit card and keys to the airplanes and buildings. Thereafter, on April 3, 2000 Claimant was called to a meeting which took place at approximately 4:00 p.m. at NAIS' offices. Present for the meeting were the Claimant, Frank Zilka, NAIS president, and Christopher Scaringe, NAIS counsel. In the course of the brief meeting, Claimant was advised he was terminated and return of the NAIS issued items was requested. Claimant insisted that he was entitled to a written letter of termination which he was advised he would not receive. [1] Claimant then left the premises.

Immediately thereafter, NAIS, through Zilka and Scaringe, contacted the New York State Police and initiated a criminal complaint against Claimant for his failure to return the NAIS property. Trooper Mark A. Hale was assigned to the call. Trooper Hale went to NAIS' offices and obtained supporting depositions from Zilka and Scaringe and a signed information alleging petit larceny. From that point, Trooper Hale telephoned Claimant to discuss the situation. Although their versions of the telephone call differ, Claimant voluntarily appeared at the Trooper Barracks at approximately noontime on April 4, 2000 with the NAIS property. Shortly after arrival, Claimant was placed under arrest by Trooper Hale, charged with the crime of petit larceny in violation of Penal Law §155.25 . Claimant was not issued an appearance ticket, but rather was brought before a Justice of the Malta Town Court, arraigned, bail was set and unable to make bail, Claimant was transported to the Saratoga County Jail. Claimant was incarcerated until April 5, 2000 before making bail. On October 17, 2000 the charge against Claimant was dismissed by the Town of Ballston Justice Court.

Prior to addressing the merits of the summary judgment motion, the Court must first address the jurisdictional defense asserted by Defendant and raised in the instant motion. In order to do so, the Court must first determine which pleading, the first filed Claim or the Amended Claim, is to be scrutinized.


Pursuant to CPLR Rule 3025(b), and § 206.7(b) of the Uniform Rules for the Court of Claims, a party may amend pleadings at any time with Court approval, which shall be freely given. The Uniform Rules for the Court of Claims permits the parties to amend a pleading by stipulation - however, such stipulation must be executed prior to the expiration of the time limits and filed with the Clerk within 10 days of execution (§ 206.7[c]). The Court has searched the Court records and finds no such stipulation on file[2]. Nor has there been an application made to the Court for permission to amend the Claim. Moreover, where as here, the "amendment" is to supply a verification and not to allege new facts or a new theory of liability but rather to cure a jurisdictional defect such amendment would be improper (see, Grande v State of New York, 160 Misc 2d 383; Ferrer v State of New York, 172 Misc 2d 1; Williams v State of New York, Ct Cl, Collins, J., August 17, 2001, Claim No. 102081, UID No. 2001-015-171; see also, Welch v State of New York, 71 AD2d 494, lv denied 50 NY2d 802; Williams v State of New York, 77 Misc 2d 396, [an order may not be made nunc pro tunc to supply a jurisdictional defect by requiring something to be done which was not done] ). Accordingly, this Court finds the only Claim before it is the original Claim filed on June 12, 2001[3] and now turns its attention to the jurisdictional defense raised by Defendant.

The Court's analysis begins with the black letter principle that "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724; Lichtenstein v State of New York, 93 NY2d 911). Pursuant to Section 11 (b) of the Court of Claims Act" [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 the supreme court." The Legislature prescribed the form of the affidavit of verification to be used in a Supreme Court action in Rule 3021 of the CPLR which states:

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.

In Martin v State of New York, 185 Misc 2d 799, Judge Corbett rendered a well reasoned opinion which analyzed in detail the judicial treatment of the jurisdictional requirements contained in the Court of Claims Act and held that the complete lack of a verification was a jurisdictional defect which could not be waived and as such required dismissal of that action. (Martin v State of New York, 185 Misc 2d at 804). In reaching this holding, Judge Corbett placed emphasis on the 1990 amendment to the Court of Claims Act which added § 11(c) to Court of Claims practice and which identified as the only waivable jurisdictional defects, defects in timeliness and manner of service, (Id. at 802-803.). Subsequent cases have addressed various deficiencies in the form of verification with varying results (Pinckney v State of New York, Ct Cl, Collins, J., January 9, 2002, Claim No. 104770, UID No. 2001-015-210, [claim which bore the signature of the claimant and the words "SWORN TO BEFORE ME ON 17 DAY OF August 2001," the signature of Notary Public and a stamp indicating the County of the Notary's qualification, a State issued identification number and the expiration date of the notary commission but lacked verification language was fatally defective]; see also Malloy v State of New York, Ct Cl, Read, P.J., December 12, 2001, Claim No. 104933, UID No.; Pugliese v State of New York, Ct Cl, Midey, J., September 24, 2001, Claim No. 99992, UID No. 2001-009-045; [unverified claim is jurisdictionally defective]; Santos v State of New York, Ct Cl, Lebous, J., July 24, 2002, Claim No. 105971, UID No. 2002-019-551, [the presence of a jurat, without a separate verification, does not satisfy the requirement of CCA 11 (b)]; Williams v State of New York, Ct Cl, Collins, J., August 17, 2001, Claim No. 102081, UID No. 2001-015-171[unverified claim is jurisdictionally defective]; Morrison v State of New York, Ct Cl, Fitzpatrick, J., May 9, 2002, Claim Nos. 104475, UID No. 2002-018-136; but see, Abdullah v State of New York, Ct Cl, Bell, J., December 7, 2001, Claim No. 104525, UID No. 2001-007-141, [inexact verification does not rise to level of jurisdictional defect]).

In the instant action, the Claim is signed by the Claimant and Claimant's attorney (see, Claim), there is no jurat by a notary public, nor is the required verification language of CPLR 3021 present upon the Claim which would indicate either signatory (see, CPLR 3020[d][3] permitting an attorney to verify on behalf of the client in limited circumstances) was verifying the pleading. Accordingly, the Court finds Claimant has failed to comply with the verification requirements as set forth in the CPLR and §11(b) and as such the Claim suffers from a jurisdictional defect.[4]

Having found a jurisdictional defect, the Court must next explore whether the defect is waivable. Notwithstanding prior decisional law that has held such defects to be waivable (see, Williams v State of New York, 77 Misc 2d 396 ) Judge Corbett's analysis in Martin, supra, in this Court's view, relying in large part on the 1990 amendments to the Court of Claims Act, and the history of the waiver of the State's sovereign immunity, provides a foundation for breaking with the earlier holdings[5]. Furthermore, pursuant to §11 the commencement of an action in the Court of Claims requires a verified Claim. This mandate lends additional support for the proposition that the failure to verify is a non-waivable and fatal defect (compare, City of Rensselaer v Duncan, 266 AD2d 657 [verified petition not required to commence special proceeding pursuant to CPLR 304, rather requirement is found in CPLR 7804, therefore defect is not jurisdictional]).

Accordingly, the Court grants Defendant's motion to dismiss the Claim based upon the lack of subject matter jurisdiction.[6]

August 29, 2002
Albany, New York

Judge of the Court of Claims

[1] There was a sharp dispute in the materials submitted whether, and when, Claimant stated he would return the NAIS property.
[2] Given that the Amended Claim was not filed until nearly seven months after Defendant served its Answer and the Court conducted a conference on this Claim in October 2001, it is evident there has been no attempt to comply with CPLR Rule 3025(b), and § 206.7 of the Uniform Rules (see also, Garland v State of New York, Ct Cl, Scuccimarra, J., December 21, 2001, Claim No. 101053, UID No. 2001-030-565 [no proper application was made to amend the pleading as required]).
[3] Claimant's attempt to likewise amend the previously served Notice of Intention to File a Claim is unavailing as a Notice of Intention, is not amenable to amendment (Barthrop v State of New York, Ct Cl, Patti, J., October 19, 2001, Claim No. 104214, UID No. 2001-013-022 ).
[4] The developing case law suggests nuances which may trip the unwary practitioner resulting only in a pyrrhic victory (see, e.g., Vogel v State of New York , 187 Misc 2d 186 [while the notice of intention was defective, Defendant failed to preserve defense that Claim was therefore untimely]; accord, Carpenter v State of New York, Ct Cl, Collins, J. , March 28, 2002, Claim No. 105065, UID No. 2002-015-233)
[5] While Martin, supra, represents the majority view (see, i.e., Pinckney v State of New York; supra; Pugliese v State of New York, supra;) there is continued support for the proposition that the defect is waivable (see, Rivera v State of New York, Ct Cl, McNamara, J., November 26, 2001, Claim No. 104625, UID No. 2001-011-608).
[6] The Court does not reach the issue of whether Defendant would be entitled to summary judgment.