New York State Court of Claims

New York State Court of Claims

DOLBERRY v. THE STATE OF NEW YORK, #2003-015-320, Claim No. 105972-A, Motion Nos. M-66119, M-66247, M-66248


Court lacked subject matter jurisdiction to hear claim where pro se claimant failed to verify claim. Claimant's cross-motion to compel discovery and for summary judgment denied as moot.

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):
M-66119, M-66247, M-66248
Cross-motion number(s):

Claimant's attorney:
Andre Dolberry, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen Resnick, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 6, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion to dismiss the claim on the grounds that the Court lacks jurisdiction due to claimant's failure to verify the claim as required by Court of Claims Act § 11 (b) is granted. Claimant's [cross] motions to compel discovery and for summary judgment are denied as moot. The claim seeks to recover unspecified damages stemming from the loss of personal property including legal documents, addresses, and photographs which claimant discovered on August 20, 2001 following his transfer from Cayuga Correctional Facility to Upstate Correctional Facility. Although the claim alleges that an action was commenced on 9/21/01 this allegation apparently refers to the commencement of the Department of Correctional Services (DOCS) administrative review for inmate personal property claims (see 7 NYCRR Part 1700). The claim further alleges that claimant appealed the initial disapproval of his administrative claim to the facility's Superintendent T. Ricks. Superintendent Ricks denied claimant's appeal by interdepartmental communication dated November 30, 2001.

The instant claim which was signed and dated 12/6/01 at Malone, New York does not contain an affidavit of verification nor does it specify the amount of damages sought for the loss of claimant's property.

The defendant has moved for summary judgment on the grounds that the claim fails to state a cause of action and the Court lacks jurisdiction to hear the claim. Defense counsel alleges in her affirmation in support of the motion that the claim is based upon allegations of negligent investigation which is not a recognized cause of action in New York State. While the claim does indeed assert claimant's dissatisfaction with the investigation of his administrative claim the Court views the claim as seeking judicial review following exhaustion of claimant's administrative remedy as authorized by Court of Claims Act § 10(9). Accordingly, the Court finds that the claim states a cause of action and denies that portion of the motion which seeks dismissal on that basis.

Despite the claim's assertion of a cognizable cause of action the claim is jurisdictionally defective and must be dismissed. Section 11 (b) of the Court of Claims Act specifically provides, in relevant part, that "[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 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.
The instant claim contains no verification and in fact bears only the signature of the claimant and the date and place of execution. Defendant raised the lack of verification in its answer and the claimant has not addressed this defect in his opposing paper.

Failure to comply with the clear language of Court of Claims Act § 11 (b) requiring verification of a claim renders the claim herein jurisdictionally defective (see, Graham v Goord, 301 AD2d 882; Martin v State of New York, 185 Misc 2d 799; Pugliese v State of New York, Ct Cl, September 24, 2001 [Claim No.99992], Midey, J., unreported; cf Vogel v State of New York, 187 Misc 2d 186). The claim is, accordingly, dismissed.

Dismissal based upon the failure to properly verify the claim renders academic the claimant's motions to compel discovery and for summary judgment.

May 6, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion (M-66119) dated December 4, 2002;
  2. Affirmation of Kathleen M. Resnick dated December 4, 2002 with exhibits;
  3. Reply to motion to dismiss dated January 21, 2003 with attachments;
  4. Notice of motion (M-66247) dated December 29, 2002;
  5. Unsworn statement of Andre Dolberry dated December 28, 2002 with attachments;
  6. Unsworn statement of Andre Dolberry dated February 18, 2003;
  7. Notice of motion (M-66248) dated January 3, 2003;
  8. Unsworn statement of Andre Dolberry dated January 3, 2003;
  9. Affirmation of Kathleen M. Resnick dated February 7, 2003;
  10. Unsworn statement of Andre Dolberry dated February 24, 2003