Defendant's motion pursuant to CPLR 3211 (a) (2) to dismiss the claim for lack
of subject matter jurisdiction is denied. Specifically the defendant has
alleged that the instant claim for loss of inmate property was neither verified
nor served and filed within 120 days of the exhaustion of claimant's
administrative remedy as required by Court of Claims Act § 10 (9). The
instant claim seeks $1,363.50 in damages stemming from the negligent loss of
claimant's personal property following his transfer from Mt. McGregor
Correctional Facility to Greene Correctional Facility, Coxsackie, New York on or
about August 13, 2002. The claim alleges in substance that claimant commenced
an administrative proceeding
loss on August 26, 2002. On September 10, 2002 he received notification from M.
Berlin, the I.G.P. Supervisor that his property had been located and was being
sent to him at Greene, however, claimant alleges it was not received. Claimant
filed an inmate claim form dated October 2, 2002 which was received by the
Department of Correctional Services (DOCS) on October 3, 2002. Acting Steward
Jeanne Waddington proposed a settlement of claimant's property claim in the
amount of $8.00 on November 20, 2002 which claimant rejected on November 30,
2002. He appealed to the Greene Correctional Facility Superintendent. On
December 31, 2002 claimant was offered $63.72 in settlement of the claim by M.
O'Gorman, Steward, purportedly acting on behalf of the facility Superintendent.
The memorandum containing the offer advised claimant of his right to appeal the
decision to the Superintendent. O'Gorman acknowledged claimant's further
appeal in a memo dated January 23, 2003. In that memo she advised claimant that
his claim was being forwarded to the Division of Program Services in Central
Office per directive #2733 since it sought recovery in excess of $500.00.
By letter dated January 30, 2003
S. Nickels, DOCS' Coordinator of Inmate Accounts, claimant was advised that his
claim had "been approved for payment in the amount of $69.72" and that "[i]f you
are unwilling to accept this offer in full settlement of the claim, your
remaining option is to pursue the claim in the Court of Claims." Claimant was
also notified of the Division of Program Services' decision by memorandum dated
February 3, 2003 which repeated both the settlement offer and advised claimant
of his option to file a claim in this Court.
Claimant served a notice of intention upon the Attorney General's office by
certified mail, return receipt requested, which was received on December 4, 2002
during the pendency of his administrative appeal. He later served his claim
upon the Attorney General's office by certified mail, return receipt requested
which was received on February 20, 2003 and filed his claim with the Court Clerk
on that same date.
The copy of the claim attached to the defendant's motion papers and the
original claim filed with the Court contain a page bearing the heading
"Verification" and the following words: "I, Alonzo Ross being duly sworn,
deposes and says: That I am the affiant in the within proceeding, and that the
adjoining affidavit of service and supporting documents is true to my knowledge,
except as to any matters therein on information and belief, and as to those
matters I believe it or them to be true." The document is signed by the
claimant and indicates that it was sworn on February 6, 2003 before a notary
public qualified in Franklin County.
While it has repeatedly been held that verification of a claim is a
non-waivable jurisdictional requirement (see, Martin v State of New
York, 185 Misc 2d 799; Jones v State of New York, Ct Cl, January 29,
2002 [Claim No. 102461, M-63420, M-64075, CM-63515, CM-64103] Fitzpatrick, J.,
unreported) the cases have distinguished claims lacking a verification from
claims containing a defective verification (see, Abdullah v State of
New York, Ct Cl, December 7, 2001 [Claim No. 104525, Motion No. M-64269]
Bell, J., unreported). Here, however, the verification is neither lacking nor
defective. While the verification attached to the instant claim and described
above does not specifically refer to the claim per se it satisfies the statutory
requirements set forth in CPLR 3021. Since the verification was attached to the
claim prior to service and filing it is deemed applicable to the claim even
absent a direct reference thereto. The Court, therefore, denies the defendant's
motion seeking dismissal for lack of subject matter jurisdiction based upon the
alleged lack of a proper verification.
So too, the documentation attached to the claim and filed with the Court
demonstrates that the instant claim was both filed and served within 120 days of
the final determination of claimant's administrative remedy issued on January
30, 2003. Furthermore, the Court is unaware of any statutory mandate requiring
a claim to contain language specifically alleging compliance with the 120 day
statutory provision as a condition to suit as defense counsel suggests in her
affirmation. Absent proof that such a pleading requirement exists the Court
denies defendant's motion to dismiss the claim on that basis as well.
Defendant's motion is, in all respects, denied.