New York State Court of Claims

New York State Court of Claims

TURNER v. THE STATE OF NEW YORK, #2003-013-025, Claim No. 104542, Motion No. M-66523


Synopsis


State's motion to dismiss based on improperly verified notice of intention is denied. Motion to strike certain aspects of the Bill of Particulars is also denied, since response does not specificlaly identify a date on which incident occurred.

Case Information

UID:
2003-013-025
Claimant(s):
ANTHONY TURNER
Claimant short name:
TURNER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK The Court has previously amended the caption to reflect the only properly named defendant.
Footnote (defendant name) :

Third-party claimant(s):
THE STATE OF NEW YORK
Third-party defendant(s):
TRANSCONTINENTAL INSURANCE COMPANY
Claim number(s):
104542
Motion number(s):
M-66523
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
CHRISTOPHER P. MEYER, ESQ.EDWARD P. RYAN, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:
LUSTIG & BROWN, LLPBY: JONATHAN SCHAPP, ESQ.
Signature date:
November 12, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


On May 21, 2003, the following papers were read on motion by Defendant for dismissal of the claim or striking of certain of the bill of particulars:
1. Notice of Motion, Affirmation and Exhibits Annexed

2. Opposing Affirmation and Exhibits Annexed

3. Reply Affirmation and Exhibit Annexed

4. Filed Papers: Claim; Answer; Bill of Particulars


This is what might be called another chapter in the adventures-in-pleading serial that is too frequently presented before the Court. As usual, a brief recitation of the preceding papers in this matter will prove instructive.

The substance of the events leading to the claim herein are identically recited in the four separate notices of intention to file a claim appended as Exhibits A, B, C and D to the Defendant's motion. First, as Claimant now suggests, the only relevant notice of intention is the one appended as Exhibit B, which has on its face an acknowledgment of service by an Assistant Attorney General on October 12, 1999, and which asserts that the time when and the place where such claim arose, and the nature of the same are as follows:

On July 12, 1999, at approximately 2:00 p.m. the claimant, Anthony Turner, was working on the roof of the New York State School for the Blind, located at 24 Richmond Avenue, Batavia, New York, on behalf of Horizon Roofing and Sheetmetal, Inc., when he was caused to suffer chemical burns to his eyes and face. In addition, on July 14, 1999, at approximately 10:00 a.m. at the same location, the claimant, while descending off the roof by a ladder, fell from the ladder to the ground, causing injuries to his back and ear.



The State's motion seeks dismissal of the claim, served and filed on July 11, 2001, on the ground that the aforesaid notice of intention was not properly verified,[1] and as such, the State contends that it cannot serve to extend the time to serve and file a claim from 90 days after accrual of the underlying cause of action to two years thereafter, as permitted in Court of Claims Act §10(3).

The pleading misadventures continue in the claim itself in that it alleges that the claim herein:

...arose on July 14, 1999, at approximately 10:00 a.m., at the New York State School for the Blind (NYS School for the Blind), at 2A Richmond Avenue, Batavia, New York, when Claimant, Anthony Turner, fell from the roof of the building in the course of performing roofing and construction work.


The claim notably omits any reference to the incident of July 12, 1999 that is referenced in the notice of intention, and that omission forms the basis of the second prong of Defendant's motion, to wit, the striking of that matter contained in Claimant's bill of particulars that refers to allegations that Claimant was caused to suffer chemical burns to his eyes and face "on July 12 1999." The Defendant alleges that references thereto in the bill of particulars purportedly adds a new theory or cause of action, one which, while raised in the notice of intention, is not preserved in the claim, and Claimant cannot resurrect such allegations through the back door of the bill of particulars.

Addressing the issue of verification of the notice of intention first, it is clear that I am not faced with an absent verification, as was the case in Martin v State of New York, 185 Misc 2d 799. Initially I note that the notice of intention is signed by Claimant, and adjacent thereto is the purported and contested verification which reads: "Sworn to before me on this 11th day of October, 1999" and contains the notary's stamp and signature, with the notation that the notary's commission expires on September 18, 1999. Thus, Claimant added further adventure as it appears on its face that the notary's commission expired prior to the date on which Claimant's signature was notarized. Claimant's counsel, the notary in question, affirms under oath that he simply made a mistake on the expiration date, that he should have provided an expiration date of September 18, 2001, and as proof thereof has supplied a certification from the New York State Department of State reflecting that he was a duly qualified notary public on October 11, 1999 when he notarized Claimant's signature (Exhibit B to the affirmation in opposition). I find this to be an inadvertent error of no consequence (see, Parkhill v Cleary, 305AD2d 1088, where the Fourth Department recently noted that "...technical defects in the jurat of the affidavit of defendants' expert do not invalidate the official act of the notary public [see, Executive Law §137]").

Lest the question remain unaddressed, the claim itself contains what I would characterize as the traditional form of verification and, as such, no question is raised as to the validity of that verification.

Judge Donald J. Corbett, Jr., in Martin v State of New York (185 Misc 2d 799, supra) specifically distinguished an absent verification from a defective one, and indeed, in Jacobs v State of New York (193 Misc 2d 413), he estopped the State from playing the verification card based upon the lack of notarization of a verification. Much has been written and argued with respect to the question of verification in the aftermath of the Martin decision. Most recently, in an admirably reasoned and exhaustive decision, the Hon. Judith A. Hard, in Price v State of New York (_____ Misc 2d _____, 2003 NY Slip Op 51086U [Ct Cl, May 15, 2003]) dissected the history of, and current status of the review of verification and its relationship to the Court of Claims Act, but, while noting the confusion that the defense had to be raised in the answer, ultimately was constrained by the Third Department's recent ruling in Graham v Goord (301 AD2d 882), and adopted the view 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."[2]

Judge Hard observed as well, in Footnote 5, that "[t]here 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 [citations omitted]," adding that 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).

It appears, and I subscribe to the notion, that there is a clear distinction between an absent verification and a defective verification, a distinction which has been adopted by Judge Corbett subsequent to his decision in Martin (supra), in Jacobs v State of New York (193 Misc 2d 413, supra). Where the issue is one questioning the sufficiency of a putatively defective verification, CPLR 3022 would appear to control, and a defendant in the Court of Claims would be bound to observe the traditional remedy of addressing defective verifications, to wit, by asserting the offending pleading to be a nullity and giving notice with due diligence to the attorney of the adverse party, with due diligence being undefined (Matter of Miller v Board of Assessors, 91 NY2d 82, 86 n. 3). Some lower courts have held that notice must be given within 24 hours after receipt (Lentlie v Egan, 94 AD2d 839), while others have made a determination based upon the particular circumstances of a case (Theodoridis v American Transit Ins. Co., 210 AD2d 397).

This defining distinction between absent and defective verifications provides a defendant in this Court with choices. If there exists a putatively defective verification of any claim, the Defendant would be well advised to observe the tenets of CPLR 3022. Conversely, a claimant would be well advised to remember that a notice of intention to file a claim is not a pleading (Murray v State of New York, 202 App Div 597; Epps v State of New York, 199 AD2d 914; Arquette v State of New York, 190 Misc 2d 676), and thus CPLR 3022 is likely inapplicable to a defectively verified notice of intention (but see, Vogel v State of New York, 187 Misc 2d 186). A claim with a totally absent verification would appear to fall under the aegis of Martin (supra), and its progeny (i.e., see, Graham v Goord, 301 AD2d 882, supra), and the Defendant could choose to rely upon the same as a non-waivable jurisdictional infirmity requiring dismissal of a claim.

While the Defendant obviously is entitled and expected to raise all legitimate defenses, there remains in my mind something untoward and redolent if it fails to advise adverse parties about any questionable verifications with "due diligence" comparable to that required under CPLR 3022 for all other defendants except apparently for those in the Court of Claims.

All this having been said, the notice of intention here had a defective verification, albeit signed and sworn to by the claimant, while the claim was properly verified. Since there is no prejudice, and no jurisdictional infirmity resulting from the putatively defective verification, the State's motion to dismiss on this ground is denied.

In viewing the service and filing dates of the papers before me, I am reminded of Professor David Siegel's plaintive admonitions about traveling at the precipice of the expiration of the statute of limitations, as well as other jurisdictional time deadlines. Here, a cause of action potentially accrued on July 12, 1999, the first date mentioned in the notice of intention, and the 90-day period to complete service of a notice of intention, or filing and service of a claim, ended on October 10, 1999. Because the 90th day was a Sunday, and the 91st day was Columbus Day, a holiday (see generally, General Construction Law §20), Claimant's service of the notice of intention was achieved on the 92nd, and last possible, day.

Assuming that that service was proper and timely, then Court of Claims Act §10(3) extends the period by when a claim must be served and filed to two years from the date of accrual of the underlying cause of action. Since the claim herein raises only the event of July 14, 1999, service and filing of the claim would have had to be completed by Monday, July 16, 2001 (July 14 and 15, 2001 were a Saturday and Sunday). Actual service and filing, however, were both completed on July 11, 2001, a number of days earlier.

Claimant also displays an unfamiliarity with the Court of Claims Act, to wit, he protests the State's silence with respect to the timeliness or validity of the notice of intention for a two-year period until the State filed its answer. First, as noted above, a notice of intention is not a pleading; it does not generate any response from the Defendant, and does nothing more than serve to extend a claimant's period of time to serve and file a claim (Court of Claims Act §10). Perhaps Claimant's confusion stems from counsel's interchangeable use of the terms "notice of intention to file a claim" as specified in the Court of Claims Act and the Uniform Rules for the Court of Claims (22 NYCRR part 206), and "notice of claim," a document more familiar to practitioners who utilize the General Municipal Law. Regardless, Claimant points to no mechanism, procedure, obligation or duty on the part of the Defendant to respond in any fashion to the service of a notice of intention (a document that, since 1995, does not even get filed with the Clerk of the Court [L 1995, ch 466]).

Claimant's opposing papers note that he consented to the Defendant's request to stay all discovery proceedings until the State had sought to enforce insurance coverage against the Third Party Defendant, Transcontinental Insurance Co. The implication of Claimant's arguments is that he was sandbagged, lured into a sort of trap, by the Defendant's request and by the absence of any objection to the notice of intention until he received the answer. The fifth affirmative defense affirmatively raised questions regarding the verification of the notice of intention, and the Claimant can hardly be heard to complain now when the red flag asserting that the notice of intention was a nullity was clearly raised.

Before I address the second part of the motion to strike certain aspects of the bill of particulars, Claimant suggests that the Defendant's answer was untimely. As noted above, the claim was served and filed on July 11, 2001, and the answer was dated August 14, 2001. Claimant does not specify the grounds for his naked assertion of untimeliness, but given the above, it is not difficult to surmise that there was an unfamiliarity with 22 NYCRR 206.7(b), which allows 40 days for service of the answer. That being the case, there is no substance whatsoever for the suggestion that the answer is untimely.

Now to address the specifics regarding the incidents of July 12 and July 14, 1999. I noted above that the claim pointedly did not include the incident of July 12, 1999, which had been recited in the notice of intention. Claimant argues that the eye injuries sustained by Mr. Turner were part of an ongoing cause of action and negligence by the State which contributed to his falling from the ladder on July 14, 1999. It is claimed that his eye injuries affected his vision so as to be a factor in the cause of his fall. However, any alleged negligence and injuries sustained on July 12, 1999 have not been preserved in the claim. Defendant's suggestion that the arguments relative to the omission of the July 12 allegations might have been untimely if raised in the claim is confusing, since the actual service and filing on July 11, 2001 would have been timely as to the earlier accident. Regardless, the claim is silent as to that putative cause of action, and it was not preserved.

Defendant's motion specifically addresses the matter contained in Claimant's bill of particulars at paragraphs 3(m) and 5(c-d)(2). Paragraph 3(m) asserts negligence and carelessness by the Defendant in "[f]ailing to provide claimant with personal protection to protect him from severe burns to his eyes and skin." That particular is silent as to any date upon which the specific acts are complained of, and as such, I deny Defendant's motion to strike the particular, because it is not addressed specifically to the purported incident of July 12, 1999. Similarly, Paragraph 5(c-d)(2) addresses, inter alia, constructive notice to the Defendant of the allegedly dangerous, defective and/or unsafe conditions as "the roofing chemicals utilized caused severe burns to the eyes and skin of the roofers including the claimant due to a lack of personal protective equipment." Again, this particular is not specific as to the date of its occurrence, and since it is not addressed specifically to the purported incident of July 12, 1999, I decline to strike it.

My denial of the Defendant's motion in this regard should not be read as tacitly permitting the Claimant to proceed at trial as to the allegations relating to the purported incident of July 12, 1999. Since those allegations were notably excluded from the claim, it appears that they have not been preserved, and as such the Court would have no jurisdiction to hear allegations of negligence and injury occurring on that day.

In sum, the State's motion is denied, and a new scheduling order will be forthcoming under separate cover.

November 12, 2003
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




  1. [1]The other three notices of intention arguably suffer differing alleged deficiencies, ranging from the absence of any verification to allegedly improper service by regular mail to jurisdictionally infirm service on the State School for the Blind, not a proper defendant in this Court. Since Claimant relies only upon the notice of intention appended as Exhibit B, and my finding with respect to that notice of intention is dispositive, the motion is denied as moot with respect to the three other notices of intention.
  2. [2]Also see, Lepkowski v State of New York (302 AD2d 765; appeal pending), where there was a strong dissent based on the fact that the defendant had failed to reject the claim with due diligence pursuant to CPLR 3022 (id., at 769, Lahtinen, J., dissenting).