New York State Court of Claims

New York State Court of Claims

ANDUJAR v. THE STATE OF NEW YORK, #2003-009-55, Claim No. 107745, Motion Nos. M-67101, CM-67185


Synopsis


Defendant's cross-motion to dismiss the claim based upon a lack of verification was granted, rendering moot claimant's motion to amend his claim.

Case Information

UID:
2003-009-55
Claimant(s):
ALBERTO ANDUJAR
Claimant short name:
ANDUJAR
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107745
Motion number(s):
M-67101
Cross-motion number(s):
CM-67185
Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
ALBERTO ANDUJAR, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
October 27, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant has brought a motion (Motion No. M-67101) seeking an order permitting him to amend his claim. Defendant has responded with a cross-motion (Cross-Motion No. CM-67185) seeking an order dismissing the claim upon based an alleged lack of jurisdiction.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affidavit in Support, Proposed Amended Claim (M-67101) 1,2,3


Cross-Notice of Motion, Affirmation, with Exhibits (CM-67185) 4,5

Filed Papers: Claim, Answer

In his filed claim, claimant seeks to recover damages for personal injuries allegedly suffered by him on January 26, 2003, when he slipped on ice and snow at Marcy Correctional Facility, where he was then incarcerated. Claimant alleges that the State negligently maintained an unsafe condition by failing to remove ice and snow from the weight pavilion, located on the grounds of Marcy Correctional Facility, where he slipped and suffered injuries while working out. This claim was filed with the Clerk of the Court of Claims on May 14, 2003. Pursuant to the exhibits set forth with defendant's cross-motion, this claim was served upon the Attorney General on the same day, May 14, 2003.

In its verified answer (filed June 2, 2003 with the Clerk of the Court of Claims), defendant sets forth an affirmative defense (see Answer, par. 8) that the claim was not verified as required by Court of Claims Act § 11(b).

By his motion (M-67101) claimant seeks permission to serve and file an amended claim, with a proper verification as required by § 11(b). In opposition thereto, defendant has brought its cross-motion seeking dismissal of the claim, based upon the lack of verification in the original claim.

As claimant has admitted in his affidavit in support of his motion, it is undisputed that this claim was not properly verified in accordance with Court of Claims Act § 11(b). The failure to verify a claim is a fatal jurisdictional defect, depriving this Court of jurisdiction to hear and determine the claim (Martin v State of New York, 185 Misc 2d 799; Graham v Goord, 301 AD2d 882). Furthermore, a jurisdictional defect cannot be cured or corrected by amendment (Grande v State of New York, 160 Misc 2d 383).

Accordingly, this claim must be dismissed.

Even though this claim must be dismissed, the Court notes that prior to instituting this claim, claimant apparently served a notice of intention to file a claim upon the Attorney General. If such notice of intention was properly served within the time limitations set forth in Court of Claims Act § 10, and further assuming that such notice of intention was prepared in accordance with the requirements of Court of Claims Act § 11, claimant has extended the time within which he may serve and file a claim to two years from the date of the alleged incident. It therefore appears that claimant, at his option, may still be able to institute a new claim with respect to the matters alleged herein, without leave of Court, within such two year period. Otherwise, should the notice of intention be jurisdictionally defective, claimant may seek permission to serve and file a late claim pursuant to Court of Claims Act § 10(6).

Based on the foregoing, it is

ORDERED, that Motion No. M-67101 is hereby DENIED; and it is further

ORDERED, that Cross-Motion No. CM-67185 is hereby GRANTED; and it is further

ORDERED, that Claim No. 107745 is hereby DISMISSED.

October 27, 2003
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims