New York State Court of Claims

New York State Court of Claims

ROSS v. THE STATE OF NEW YORK, #2003-015-345, Claim No. 107366, Motion No. M-66865


Court denied defendant's motion to dismiss the claim for lack of verification and for failure to commence this action to recover for the loss of personal property within 120 days of the exhaustion of claimant's administrative remedy. The proof submitted demonstrates that the claim was verified and was timely commenced.

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:
Alonzo Ross, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 13, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


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[1] regarding this 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[2] from Jeanne 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.

August 13, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated May 20, 2003;
  2. Affirmation of Kathleen M. Resnick dated May 20, 2003 with exhibits;
  3. Affidavit of Alonzo Ross sworn to June 6, 2003 with exhibit;
  4. Reply affirmation of Kathleen M. Resnick dated June 10, 2003;
  5. Affidavit of Alonzo Ross sworn to June 17, 2003.

[1]Claimant referred to the proceeding in the claim as a "grievance," however, inmate personal property claims are processed under regulations found in 7 NYCRR Part 1700 rather than the inmate grievance procedure contained in 7 NYCRR Part 701.
[2]A copy of this letter was attached to the claim filed with the Clerk of the Court.