New York State Court of Claims

New York State Court of Claims

PRICE v. THE STATE OF NEW YORK, #2002-032-048, Claim No. 105265, Motion Nos. M-65981, M-66206, M-66207, M-66208, M-66209, M-66301, M-66347


Synopsis


Defendant's motion to dismiss an unverified claim is granted, although there are questions about the correctness of the ruling that verification is a jurisdictional, nonwaivable requirement.


Case Information

UID:
2002-032-048
Claimant(s):
KEYAN PRICE
Claimant short name:
PRICE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105265
Motion number(s):
M-65981, M-66206, M-66207, M-66208, M-66209, M-66301, M-66347
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Keyan Price, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Glenn C. King, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
May 15, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

xxx

In its answer, defendant State of New York raised, as an affirmative defense, this claim's lack of verification. In response to claimant's discovery motions, defendant has moved for dismissal of the claim on that ground. Whether the Legislature ever intended the failure to verify a claim or notice of intention as a nonwaivable jurisdictional requirement is questionable; however, current controlling authority holds that it is such. Accordingly, Claim No. 105265 is dismissed, and claimant's several discovery motions are denied as moot.

In the underlying action, claimant alleges that the State of New York failed to provide him with a safe environment within the Bare Hill Correctional Facility, and following an injury suffered on August 1, 2000, failed to provide him with adequate and appropriate medical treatment. Within the past several months, claimant has commenced no less than six discovery motions. In addition to opposing those motions, counsel for defendant has moved for an order dismissing the claim on the ground that it is jurisdictionally defective. The Court will address the defendant's motion first due to its jurisdictional nature.

The claim was commenced in November 2001 with the filing and service of an unverified claim. In its answer, filed the following month, the State raised the claim's lack of verification as an affirmative defense. On March 15, 2002, claimant served on defendant a belated verification (King affirmation, Exhibit C). In the cover letter accompanying this verification, claimant stated "I am submitting a copy of the verification so that my claim will not be deemed defective as it is unverified as required by Section 11(b) of the Court of Claims Act. Please take note that the defendants have not suffered any delay in the preparation of their case due to the oversight on my part." The verification is in proper form and is notarized. Defendant contends, however, that this belated verification did not cure the claim's jurisdictional defect" (King affirmation, ¶5).

Section 11(b) of the Court of Claims Act provides that claims and notices of intention to file claims "shall be verified in the same manner as a complaint in an action in the supreme court." The form and content of verifications of Supreme Court complaints (as well as other pleadings) are governed by CPLR 3020 and 3021. A verification is "a statement under oath that a pleading is true to the knowledge of the deponent, except as to those matters alleged on information and belief and that, as to those matters, he believes it to be true" (CPLR 3020[a]). Typically, a verification consists of two parts: an affidavit signed by the deponent reciting the statement indicated above and a "jurat," a certification stating when and before what authority the affidavit or deposition was made.[1]

The remedy for a defective verification is contained in CPLR 3022. A party who is entitled to a verified pleading but who receives one "without sufficient verification" may choose to treat the pleading as a nullity "provided he gives notice with due diligence to the attorney of the adverse party that he elects to do so." Although the Court of Appeals has declined to identify a specific time period that constitutes "due diligence" in all situations (Matter of Miller v Board of Assessors, 91 NY2d 82, 86 n 3 [1997]), a number of lower courts have determined that, in most instances, notice must be given within 24 hours after receipt of the defective pleading (see id; Lentlie v Egan, 94 AD2d 839 [3d Dept 1983]). Some courts have determined "due diligence" on the particular circumstances of a case (Theodoridis v American Transit Ins. Co., 210 AD2d 397 [2d Dept 1994]).

In courts where practice is governed exclusively by the CPLR, a requirement that a pleading be verified is not considered "jurisdictional" in the sense that the court is deprived of the power to hear an action or proceeding if there is no compliance. As long as no substantial right is prejudiced as a result of the defective verification, it is considered to be a "technical infirmity" that can be corrected by permitting amendment or simply by allowing a belated verification to be supplied (Matter of Miller v Board of Assessors, supra, at 87; City of Rensselaer v Duncan, 266 AD2d 657, 659 [3d Dept 1999]; SLG Graybar v Hannaway Law Offs., 182 Misc 2d 217 [NYCity Civ Ct 1999][rejecting an argument that the waiver provision of CPLR 3022 does not apply where the relevant statute mandates, rather than merely permits, verified petitions because in those cases verification is a jurisdictional requirement]).

For many years, practice under the Court of Claims Act in this regard was no different than that under the CPLR (see e.g., Mobil Health, Inc. v State of New York, 149 Misc 2d 784 [Ct Cl 1990]["lack of verification is a waivable deficiency"]; Williams v State of New York, 77 Misc 2d 396 [Ct Cl 1974]["irregular verification is not a fatal jurisdictional defect" and "should never result in irreparable injury to a party's ability to prosecute his cause of action"]; Walker v State of New York, NYLJ, August 6, 1990, p 21, col 1 ["Inasmuch as there is no allegation that {CPLR 3022} notice was given, the lack of verification has been waived"]).[2]

However, in 2000 verification was held to be jurisdictional and unwaivable in the Court of Claims in Martin v State of New York (185 Misc 2d 799 [Ct Cl]), which was referred to as a case of first impression. In Martin, as here, the State did not comply with CPLR 3022 by rejecting the unverified claim as a nullity but raised lack of verification as an affirmative defense in its answer. In that case, the State's motion to dismiss for lack of verification was not made until after considerable discovery had been completed, after a trial date had been set, and after the time in which the claimant could move for permission to late file had expired. While acknowledging that in CPLR practice the deficiency would be deemed waived in these circumstances, the Court stated that with respect to practice in the Court of Claims
[i]t is immutable that the requirements of Court of Claims Act §11(a) and (b) are jurisdictional in nature and must be strictly construed. The courts have, in various cases and controversies, dissected section 11, and unequivocally reiterated the proposition that because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements regarding claims must be strictly construed.
(Id, at 801 [citations omitted].)[3] Consequently, it was held that "verification is a jurisdictional requisite of the statute," that "its absence is a fatal defect," and that the defect "may not be remedied by amendment of the original claim" (id, at 804).[4]

Subsequently, the judges of this Court who have considered the issue have, almost without exception, followed the holding in Martin, adopting and enforcing the view that failure to verify either a claim or a notice of intention is a jurisdictional defect that can be raised at any time, either by defendant or by the court sua sponte, and which is not cured by filing and serving an amended pleading or by supplying the missing verification (see, e.g., Devers v State of New York, Ct Cl, Aug. 29, 2002, Sise, J. [Claim No 104407, Motion No M-65151] UID #2002-028-050; Malloy v State of New York, Ct Cl, Dec. 12, 2001, Read, P.J. [Claim No. 104933, Motion No. M-64215]).[5] In addition, where the State seeks to dismiss a claim as untimely because the notice of intention was not verified, that objection must be raised, with particularity, either by a pre-answer motion or in the answer itself, pursuant to Court of Claims Act §11(c) (Vogel v State of New York, 187 Misc 2d 186 [Ct Cl 2000]; Carpenter v State of New York, Ct Cl, March 28, 2002, Collins, J [Claim No. 105065, Motion No. M-64462] UID #2002-015-233; McCants v State of New York, Ct Cl, Feb. 22, 2002, Corbett, J. [Claim No. 104486, M-64341, M-64530] UID# 2002-005-504). It has also been held that the verification requirement is met so long as the original claim filed with the Court is verified, even if the copy of the claim served on defendant lacks verification (Holman v State of New York, Ct Cl, Dec 13, 2002, Fitzpatrick, J., Claim No. 101699, Motion No M-65652, UID #2002-018-197) As a logical corollary to the preclusive jurisdictional effect that is now given to the requirement of verification, it has been held that defendant is not required either to carry out the procedures outlined in CPLR 3022 or even to raise lack of verification as an affirmative defense in its answer (Moates v State of New York, Ct Cl, Feb 11, 2003, Fitzpatrick, J., Claim No. 100494, Motion No. M-65720; but see Kipp v State of New York, Ct Cl, Jan. 28, 2003, Lebous, J., Claim No. 106686, Motion Nos. M-66116, CM-66180, UID #2003-019-510 ["The State was under no obligation to advise the Claimant of this jurisdictional defect any sooner or in any manner other than by a timely answer or motion to dismiss."]).

Prior to a 1990 amendment to section 11 (L 1990, ch 625, §1), this same preclusive jurisdictional effect was given to two other practice requirements contained in the Court of Claims Act: the time limitations found in section 10 and the manner of service requirements found in section 11 (now section 11[a]). Until that amending legislation was passed, both trial and appellate courts consistently held that those two requirements had to be strictly construed because they were specific conditions placed on the State's waiver of the sovereign immunity; that failure to comply with either condition was a jurisdictional defect; that such failure did not have to be set forth as an affirmative defense but could be raised at any time, either by defendant or by the Court itself; and that if noncompliance was proven, dismissal was the unavoidable result (see e.g., Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], lv denied 64 NY2d 607; Schaeffer v State of New York, 145 Misc 2d 135, 136 [Ct.Cl. 1989]).

There was significant criticism of this aspect of Court of Claims practice, particularly when, as often occurred, the State waited until after the time in which a motion to late file could be made before moving to dismiss for untimeliness or improper service. Former Court of Appeals Judge Bernard Meyer referred to this practice as "play[ing] possum" and saw the situation to be regrettable because "persons whom the State intended to benefit by waiving its sovereign immunity and permitting action to be brought against it in the Court of Claims are being deprived of all recompense" (Jones v State of New York, 51 NY2d 943, 944, Meyer, J., dissenting [1980]). (See also, Pelnick v State of New York, 141 Misc 2d 542, 543-544 [Ct Cl 1988], revd on other grounds 171 AD2d 734 [2d Dept 1991]["the Court does not appreciate or condone the practice of playing ‘possum' until the Statute of Limitations has expired and claimant can no longer avail herself of the relief afforded by a motion to permit the late filing of a claim" {citation omitted}]).

The purpose behind the 1990 amending legislation was to correct this situation. "A failure to comply with the precise requirements of the Court of Claims Act has often led to harsh results which deprive a claimant of an adjudication of the claim on the merits. It is this result and the accompanying gamesmanship which led to the enactment of Court of Claims Act §11(c)" (Fowles v State of New York, 152 Misc 2d 837, 839 [Ct Cl 1991]). The new section 11(c) required that any defenses based on failure to comply with either the Act's time limitations or its manner of service requirements were waived unless they were raised, "with particularity," in either the State's answer or in a pre-answer motion.[6]

The background and purpose of the 1990 legislation is discussed at length in Charbonneau v State of New York (148 Misc 2d 891, 897 [Ct Cl 1990], aff'd 178 AD2d 815, affd sub nom Dreger v New York State Thruway Auth., 81 NY2d 721) and Sinacore v State of New York (176 Misc 2d 1, 5-6 [Ct Cl 1998]) and clearly articulated in the Governor's Bill Jacket. According to the bill's proponents, the amendment was designed to "enhance the fairness of Court of Claims practice" and to make operation of the Court of Claims' time and manner of service requirements the same as that of the "similar and more commonly encountered" statute of limitations and service requirements in the CPLR (Governor's Bill Jacket, letter of [then-Presiding] Judge Donald J. Corbett, Jr.).
It is not only inexperienced pro se litigants who have been caught unaware and who have unexpectedly lost what they reasonably considered to be a viable action in this Court, but practicing attorneys as well. The bill now before the Governor would remove all uncertainty and eliminate the possibility of unfair surprise.[7]

(Id) The Chairman of the Assembly Judiciary Committee agreed that this was the legislation's purpose.

The effect of this proposed change is to conform the procedures in the Court of Claims to existing law under the Civil Practice Law and Rules in the other courts of this state. New York permits its citizens to sue it; procedural handicaps to the pursuit of remedies which are given to plaintiffs should not be allowed to prejudice them in cases against the state where no such obstacle exists in cases against a private party.
(id, letter of Assemblyman G. Oliver Koppell.) The same view was expressed by the bill's sponsor, Christopher J. Mega, who was then Chairman of the Senate Judiciary Committee and who later became a Presiding Judge of the Court of Claims. "These amendments to section 11 would provide analogous provisions to those presently found in CPLR section 3211(e)" and would "make the system relating to litigation against the State more equitable" (id, Memorandum in Support).

It is ironic, therefore, that that 1990 legislation, which was designed to make Court of Claims practice more equitable and more consistent with practice under the CPLR, is now being used as the chief argument for treating verification in a way that will catch litigants unaware, result in unfair surprise, and create a "procedural handicap" which does not exist in cases brought against private parties.[8]

In Martin (supra), the Court reasoned that if the Legislature had wanted to make verification a waivable requirement along with the time and manner of service requirements, section 11(c) would have been written to include a parallel provision that any defense based on lack of verification had to be raised in the answer or a pre-answer motion or deemed waived.
With this enactment [L 1990, ch 625] the Legislature revisited its limited waiver of sovereign immunity, and waived certain elemental jurisdictional defenses if they were not raised in a timely fashion. This broadening of the waiver however did not, and does not, extend to other jurisdictional requirements of section 11.
(Martin v State of New York,185 Misc 2d, at 802-803, supra). Similarly, in Devers v State of New York (UID #2002-028-050, supra), the Court placed emphasis on timeliness and manner of service as being the "only waivable jurisdictional defects" identified in the 1990 amendments.

This argument implicitly relies on the principle of statutory construction that "[t]he failure of the Legislature to include a matter within a particular statute is an indication that its exclusion was intended (McKinney's Cons Laws of NY, Book 1, Statutes, § 74)" (Pajak v Pajak, 56 NY2d 394 [1982]). However, the full statement of this principle, which is referred to as "implication from legislative silence" is as follows:
A court cannot by implication supply in a statute a provision which it is reasonable to suppose the Legislature intended intentionally to omit; and the failure of the Legislature to include a matter within the scope of an act may be construed as an indication that its exclusion was intended.
(Statutes, § 74, supra [emphasis supplied]). When one considers the context in which L 1990, ch 625 was enacted, it becomes apparent that it would be unreasonable to suppose that the Legislature intended to omit reference to the requirement of verification. In fact, there was absolutely no need for the Legislature to make lack of verification a waivable defense, because it already was.

In 1990, when the Legislature amended the Court of Claims Act to bring practice in this Court into greater conformity with practice under the CPLR, the treatment that was being consistently accorded to verification, or the defense of lack of verification, was already entirely consistent with relevant CPLR provisions. It was also consistent with the Court of Claims Act's requirement that claims and notices of intention "be verified in the same manner as a complaint in an action in the supreme court."

If a claim or notice of intention was not verified, the defendant was required to comply with CPLR 3022 by rejecting it and giving prompt notice to claimant that it was being treated as a nullity. If this was not done, then any defense based on lack of verification was waived. This was true prior to 1990 (see, Mobil Health, Inc. v State of New York, 149 Misc 2d 784, supra; Williams v State of New York, 77 Misc 2d 396, supra; Walker v State of New York, NYLJ, August 6, 1990, p 21, col 1, supra), and it continued to be true after section 11 was amended (see, e.g., Grant v State of New York, Ct Cl, July 22, 1994, Weisberg, J. [Claim No. 86579, Motion No. M-48679] ["Where a verification is defective, the other side's remedy is to promptly reject the pleading. Where this is not done, the defect is waived."]; Arditi v State of New York, Ct Cl, May 13, 1997, Ruderman, J. [Claim No. 95339, Motion No. M-55139]["defendant failed to give claimant notice, with ‘due diligence,' that it had elected to treat the filed claim as a nullity; therefore the defect is deemed waived"]). More to the point, research has disclosed no decision prior to Martin (supra) in which the verification requirement of the Court of Claims Act was held to be jurisdictional or to operate any differently than verification requirements in other courts governed by the CPLR. In short, the Legislature did not need to refer to verification to conform it with CPLR practice, because in 1990 there was no distinction between practice in the Court of Claims and elsewhere insofar as it related to verification.

If this Court were free to consider the issue anew, it would decline to follow Martin and hold that defendant had to comply with the provisions of CPLR 3022 in order to challenge this claim's lack of verification. That holding would be based on the same reasons that were given in support of the 1990 legislation, that it is fairer and more equitable for practice in this Court to at least resemble practice in other courts. In addition, the holding would be based on the express language of section 11, reasoning that when it requires verification "in the same manner as a complaint in supreme court," what is intended is that verification in the Court of Claims is to be governed by the relevant provisions of the CPLR.

Two recent decisions of the Third Department preclude this course of action, however. In Graham v Goord (301 AD2d 882 [3d Dept 2003]), a pro se inmate appealed the decision of former Presiding Judge Susan Phillips Read dismissing a claim on the ground that it was not verified. The appellate court affirmed, reciting the jurisdictional nature of requirements conditioning suit against the sovereign and stating "inasmuch as defendants timely raised the defense of lack of verification in their answer, we affirm dismissal of the claim." The inference that the defense has to be raised in the answer is admittedly confusing. If lack of verification is dealt with as under the CPLR, then defendant would have to give notice well before an answer was due; if, on the other hand, verification is considered a jurisdictional requirement, then the defense may be raised at any time. Nevertheless, it appears that the Third Department has adopted the view that in Court of Claims practice, the requirement that verification of claims and notices of intention is a nonwaivable jurisdictional requirement and that, unlike the practice in other courts, the remedy available to defendant is not limited to that found in CPLR 3022. More recently, in Lepkowski v State of New York (__ AD2d __, 754 NYS2d 772 [3d Dept 2003]), a claim was dismissed, inter alia, on the ground that it was not properly verified, in spite of a strong dissent based on the fact that defendant had failed to reject the claim with "due diligence" pursuant to CPLR 3022 (id, at 776, Lahtinen, J., dissenting).

This Court is obliged to follow relevant precedent established by the Appellate Division of this Department. Accordingly, defendant's motion No. M-66347 is granted and Claim No. 105625 is dismissed. Because of this ruling, claimant's Motions No. M-65981, M-66206, M-66207, M-66208, M-66209 and M-66301 are denied as moot.


May 15, 2003
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on defendant's motion for an order of dismissal:[9]
1. Notice of Motion and Supporting Affirmation of Glenn C. King, Esq., AAG, with annexed Exhibits

2. Affirmation in Opposition of Keyan R. Price, pro se, with annexed decisions

3. Letter of Keyan R. Price, pro se, with annexed decisions

Filed papers: Claim; Answer



[1] "A jurat typically says ‘Subscribed and sworn to before me this ____ day of [month], [year],' and the officer (usu[ally] a notary public) thereby certifies three things: (1) that the person signing the document did so in the officer's presence, (2) that the signer appeared before the officer on the date indicated, and (3) that the officer administered an oath or affirmation to the signer, who swore to or affirmed the contents of the document" (Black's Law Dictionary [7th ed. 1999]).
[2] The only published decision from this period to hold that a defense based on lack of verification had not been waived was Ritangela Construction Corp. v State of New York (183 AD2d 817 [2d Dept 1992]). There, however, the verification was missing on a pre-litigation "statement of claim" that had been served, in improper form, pursuant to State Finance Law §145. The Court noted, however, that waiver under CPLR 3022 applied to claims and notices of intention used to initiate Court of Claims actions (id, at 819, citing Walker v State of New York, supra).
[3] The decisions on which on which the Martin holding rests stand for the proposition that practice requirements in the Court of Claims Act are jurisdictional in nature. They do not, however, deal with the Act's verification requirement but instead with the Act's time limitations (Lichtenstein v State of New York, 93 N.Y.2d 911 [1999]; Lurie v State of New York, 73 AD2d 1006 [3d Dept 1980], affd 52 NY2d 849; Welch v State of New York, 71 A.D.2d 494[4th Dept 1979] , lv denied 50 NY2d 802; Dimovitch v State of New York, 33 AD2d 146, 149 [4th Dept 1969]); the requirements relating to manner of service (Dreger v New York State Thruway Auth., 81 NY2d 721 [1992]; Finnerty v New York State Thruway Auth., 75 NY2d 721; Karen v State of New York, 111 Misc 2d 396 [Ct Cl 1981]) or the requirement that the claim or notice of intention provide sufficient notice to the State to permit investigation (Cobin v State of New York, 234 AD2d 498 [2d Dept 1996], lv dismissed 90 NY2d 925, rearg denied 91 NY2d 849; Karen, supra; Harper v State of New York, 34 AD2d 865 [3d Dept 1970]; Grande v State of New York, 160 Misc 2d 383 [Ct Cl 1994]). Time and manner of service requirements are discussed below.
[4] The decision in Martin led one noted commentator to quip that, unlike other defendants, the sovereign was a "pompous bloke"and "[a]s he sheds his grace upon you by letting him sue you, shower him with verifications" (Siegel, Practice Review, No. 107, April 2001, p 3).

[5] There appears to be a difference of opinion, however, as to whether and when an irregularity in the form of the verification has the same effect as an entirely missing verification (see, Jacobs v State of New York, 193 Misc 2d 413 [Ct Cl 2002]; Devers v State of New York, supra; Santos v State of New York, Ct Cl, July 24, 2002, Lebous, J. [Claim No. 105971, Motion No. M-65291] UID #2002-019-551; Pinckney v State of New York, Ct Cl, Jan. 9, 2002, Collins, J. [Claim No. 104770, Motion No. M-64090, M-64218] UID # 2001-015-210; Abdullah v State of New York, Ct Cl, Dec. 7, 2001, Bell, J., Claim No. 104525, Motion No. M-64269, UID #2001-007-141).

[6] Subdivision (c) further provides that "if so waived the court shall not dismiss the claim for such failure." This statement arguably makes the waiver under Court of Claims Act §11(c) more permanent than waiver under CPLR 3211(e). That statute identifies certain defenses, such as Statute of Limitations, that are "waived unless raised either by such [pre-answer] motion or in the responsive pleading." It has been held, however, that the responsive pleading can later be amended, with the result that those "waived" defenses are revived (see e.g., Fahey v Ontario County, 44 NY2d 934 [1978]). Because of the final phrase in Court of Claims Act §11(c), however, it has been held that the time and manner of service defenses may not be revived by subsequent amendment of the answer (Adebambo v State of New York, 181 Misc 2d 181 [Ct Cl 1999]; Knight v State of New York, 177 Misc 2d 181 [Ct Cl 1998]), at least if the amendment is made or sought after the period during which an answer can be filed (Harris v State of New York, 190 Misc 2d 463 [Ct Cl 2002]).
[7] Judge Corbett also referred to the confusion that had resulted in the late 1980's when some, but not all, of the judges of the Court of Claims began treating the manner of service requirements as an issue of personal, rather than subject matter, jurisdiction and thus waivable under CPLR 3211(e) (see, Reed v State of New York, 147 AD2d 767 [3d Dept 1989]; Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]).
[8] It is not only pro se litigants who are likely to be confused about current practice requirements. Martin (supra) was decided more than two years ago, and its holding is stated correctly in McKinney's digest (McKinney's Consol Laws of New York, Book 29A, Court of Claims Act §11, pocket part, n ote 24) and in 19B Carmody-Wait 2d §120:32 (Supp). However, the holding is misstated in 84 NY Jur2d, Pleading §67 ("State * * * waived the objection to claimant's unverified complaint [sic] * ** for purposes of CPLR provision allowing a recipient to treat an unverified or defectively verified claim as a nullity"). And neither Martin nor the rule that verification is a jurisdictional requirement in the Court of Claims is mentioned in Siegel's New York Practice, 3rd ed., or in 62A NY Jur 2d, Government Tort Liability §266. The latter reference continues to state, in relevant part, that "a defective verification is not fatal to the jurisdiction of the Court of Claims where such error is an oversight and does not prejudice the state." Thus, even a diligent practitioner may become confused or be misled on this point.
[9] Because of the ruling on defendant's jurisdictional motion, the submissions made in support of an opposition to claimant's discovery motions were not considered.