New York State Court of Claims

New York State Court of Claims

CAPRIO v. THE STATE OF NEW YORK, #2003-015-323, Claim No. 103245, Motion Nos. M-66272, CM-66383


Court denied State's motion to dismiss unverified claim on grounds that State was precluded from raising the defense by principle of equitable estoppel. Actions of Assistant Attorney General in executing a written stipulation waiving the defense plus oral representations regarding such waiver prevents this eleventh hour motion from being granted.

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:
Girvin & Ferlazzo, P.C.Christopher P. Langlois, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 28, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion to dismiss based upon a lack of jurisdiction arising from the claimants' failure to file a verified claim as required in Court of Claims Act § 11 (b) is denied. Claimants' cross-motion for an order to treat the verified notice of intention to file a claim served upon the Attorney General on January 17, 1999 as a claim pursuant to Court of Claims Act § 10 (8) is denied as moot. The instant claim seeks to recover for personal injuries sustained by Sarah J. Caprio in a two vehicle accident which occurred on November 25, 1998 on State Route 145 approximately 1/4 mile north of its intersection with Frank Hitchcock Road in the Town of Cairo, Greene County[1]. The claim is grounded on the alleged negligence of the State in failing to properly design, construct and maintain the subject roadway in a reasonably safe condition. Claimant also alleges that the defendant failed to warn motorists of a dangerous, defective and hazardous condition.

The following facts are not in dispute. Claimants served a verified notice of intention to file a claim upon the Attorney General's Office on January 17, 1999. An unverified claim was served on October 18, 2000 and filed with the Court Clerk on October 19, 2000. On November 13, 2000 the defendant served and filed its verified answer which asserted as an affirmative defense: "That the claim is defective as it is unverified as required by Section 11 of the Court of Claims Act" (Defendant's Exhibit C). Claimants' attorney alleges in his affidavit in opposition to the motion and in support of the cross-motion that he received the defendant's answer on November 14, 2000, eleven days prior to the expiration of claimants' time to file and serve a verified claim under the extension of time provided by service of the notice of intention (Court of Claims Act § 10 [3]). On November 16, 2000 claimants' counsel Peter Murray contacted Assistant Attorney General Michael Rizzo to request that the State withdraw its verification defense noting that, if necessary, the claimants could serve and file a new, verified claim within the period still available under Court of Claims Act § 10(3). According to Mr. Murray, the Assistant Attorney General agreed to sign a stipulation to be filed with the Court waiving the affirmative defense. Thereafter, claimants' counsel prepared a stipulation which related that "the Respondent hereby withdraws its Fourth Defense set forth in its Verified Answer dated November 13, 2000 alleging that the claim is defective as it is unverified as required by Section 11 of the Court of Claims Act." The stipulation was signed by Assistant Attorney General Rizzo and returned to claimants' counsel who, in turn, signed the document on December 18, 2000 and filed it with the Court Clerk on December 20, 2000. Claimants' counsel also alleges that on December 6, 2000 he "sent an original and two copies of [an] attorney verification to the Court of Claims Clerk to be added to claimants' previously filed claim".

After completion of discovery and the filing of a note of issue the matter was set down for trial. Following several adjournments of the scheduled trial date the case was transferred to these Chambers and set for trial on January 28, 2003. By order to show cause signed January 16, 2003 the defendant moved to dismiss the claim for lack of subject matter jurisdiction pursuant to Court of Claims Act § 11 and Rule 3021 of the CPLR.

The above facts are not denied by the defendant which has notably failed to provide an affidavit from Mr. Rizzo, the Assistant Attorney General who signed the stipulation withdrawing the verification defense and was directly involved in the circumstances surrounding this matter. Instead the defendant asserts simply that the failure to verify a claim as required by Court of Claims Act § 11 (b) is a non-waivable jurisdictional defect requiring dismissal.

Claimants' counsel argues that the State should be estopped from asserting the verification defense expressly withdrawn in the stipulation signed by the parties and filed with the Court. In this respect claimants argue that the parties engaged in discovery from the time the stipulation was executed and filed in December 2000 until shortly before a pre-trial telephone conference held on January 13, 2003 at which time the defendant raised the defective verification defense. As the time for filing a verified claim under Court of Claims Act § 10 (3) has expired, claimants assert that the State should be estopped from raising the verification defense based upon claimants' reasonable reliance upon the defendant's agreement to withdraw the defense first reached on November 16, 2000 and memorialized thereafter in the stipulation. Claimants also argue that the State should be estopped from asserting a Statute of Limitations defense to its motion seeking treatment of the verified notice of intention as a claim because the applicable three-year limitations period (see Court of Claims Act § 10 (3) and CPLR 214 [5]) lapsed subsequent to execution and filing of the stipulation and during the period in which active discovery was still ongoing.

Although sometimes available in " 'unusual factual situations' to prevent injustice" (Matter of EFS Ventures Corp. v Foster, 71 NY2d 359) it is widely recognized that estoppel is generally unavailable against the State when it acts in a governmental capacity (Matter of Schwartz v Crosson, 165 AD2d 147). An exception to the general rule disallowing the use of estoppel against a governmental entity was found by the Court of Appeals in Bender v New York City Health & Hosp. Corp., 38 NY2d 662, a case in which the plaintiff sought to preclude the defendant from asserting a defense based upon the failure to file a notice of claim pursuant to General Municipal Law § 50-e. The Court remitted the matters at issue for evidentiary findings regarding the estoppel issue stating at p 668:
We believe that where a governmental subdivision acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice that subdivision should be estopped from asserting a right or defense which it otherwise could have raised. (see generally, Applicability of doctrine of estoppel against government and its governmental agencies, Ann., 1 ALR 2d 338; 2 Antieau, Municipal Corporations, §16A.22; cf LaPorto v Village of Philmont, 39 NY2d 7). The equitable bar to a defense may arise by virtue of positive acts, or omissions where there was a duty to act. By applying the doctrine of equitable estoppel to notice of claim situations, the courts may insure that statutes like section 50-e of the General Municipal Law, do not become 'a trap to catch the unwary or the ignorant' (see, Sweeney v City of New York, 225 NY 271, 273).
A case substantially analogous to the matter presented herein is Arachy v State of New York, 196 AD2d 625. In Arachy the claimant served both a notice of intention and claim by regular mail. The State then served an answer asserting improper service as a defense. After consulting with defense counsel, claimants' counsel was assured that the defense would be withdrawn if the claim was re-served by certified mail. The claim was properly re-served and, when the defense was not thereafter withdrawn, a paralegal employed by claimants' counsel was again assured by the Assistant Attorney General that the manner of service defense would be withdrawn. The State moved to dismiss the claim on the grounds of improper service shortly after the applicable Statute of Limitations had expired. The Appellate Division reversed the Court of Claims decision granting the State's motion finding that "there is no question that the claimants relied upon the Assistant Attorney General's instruction with respect to the correction of the defect and refrained from acting within the limitations period because of his representations" (Arachy at p. 627).

In this case the State assured the claimants that the verification defense would be withdrawn in a conversation held prior to the expiration of the time within which a new, verified claim could be timely filed. Thereafter, a stipulation implementing withdrawal of the defense was executed by the parties and filed with the Clerk. Discovery proceeded without interruption, a note of issue was filed and two scheduled trial dates came and went without mention of the verification defense. The defense is now being asserted subsequent to the expiration of the three year Statute of Limitations within which an application seeking Court of Claims Act § 10 (8) treatment of the notice of intention to file a claim and/or late claim relief pursuant to Court of Claims § 10 (6) could be made.

Defendant's argument that the lack of verification is a non-waivable jurisdictional defect is not controlling. Application of the principle of estoppel does not determine the validity of a defense nor does it rest on the concept of waiver. Rather, estoppel prevents the defendant from "asserting .... a defense which it otherwise could have raised" in instances where its wrongful conduct induces justifiable reliance by a party who thereby suffers damage or prejudice (Bender at p 668). Such circumstances are present here and constitute the sort of unique or unusual conditions under which estoppel may be applied against the State (see, Stroud v State of New York, 184 Misc 2d 876; Williams v State of New York, Ct Cl, May 18, 2000 [Claim No. None, Motion No. M-61167] Fitzpatrick, J., unreported).

Assistant Attorney General Michael Rizzo agreed to withdraw the defense of failure to verify the claim in a conversation with claimants' counsel prior to expiration of the period available for filing a claim under Court of Claims Act § 10 (3). A written stipulation implementing that agreement was signed by both parties and filed with the Court. Discovery continued and a note of issue was filed. During the period between execution and filing of the stipulation in December, 2000 and January, 2003 when the defense was raised again, the time to apply for relief under either sections 10 (6) or 10 (8) of the Court of Claims Act had expired. Under such circumstances the Court finds that the actions of the defendant caused the claimants to reasonably rely on its explicit oral and written representations regarding withdrawal of the verification defense. Assertion of that defense is now barred as the reliance induced by the defendant has caused the claimants prejudice in that should dismissal be granted there exists no viable avenue for asserting a claim against the defendant as the Statute of Limitations applicable to a negligence cause of action has expired precluding relief under Court of Claims §10 (6) and §10 (8).

For the reasons stated the defendant's motion to dismiss the claim is denied. The claimants' cross-motion is likewise denied as moot.

May 28, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Order to show cause dated January 16, 2003;
  2. Affirmation of Saul Aronson dated January 15, 2003 with exhibits;
  3. Cross notice of motion dated February 10, 2003;
  4. Affidavit of Peter D. Murray sworn to February 10, 2003 with exhibits;
  5. Affidavit of Christopher P. Langlois dated February 10, 2003 with exhibits;
  6. Affirmation of Saul Aronson dated February 12, 2003.

[1]The claim of David Caprio is derivative only.