New York State Court of Claims

New York State Court of Claims

MONTROSE v. THE STATE OF NEW YORK, #2003-016-074, Claim No. 108032, Motion No. M-67214


Claim was dismissed as it was not verified.

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):

Alan C. Marin
Claimant's attorney:
Gregory Montrose
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James E. Shoemaker, Esq., AAG
Third-party defendant's attorney:

Signature date:
September 30, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is defendant's motion to dismiss the claim of Gregory Montrose, in which Mr. Montrose alleges that because of defendant's negligence, he slipped and fell in the gym at Woodbourne Correctional Facility. The ground for defendant's motion is that this Court lacks jurisdiction because Montrose failed to verify his claim. Section 11(b) of the Court of Claims Act requires that a "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 Third Department has held that verification in this Court is a jurisdictional prerequisite, the lack of which warrants dismissal. See Graham v Goord, 301 AD2d 882, 752 NYS2d 924 (3d Dept 2003).

In this case, Montrose's claim is notarized, however, it fails to contain the language set forth in CPLR 3021, entitled "Form of affidavit of verification," which states in relevant part that "[t]he 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. . ." While no case has explicitly ruled that a document that is only notarized does not satisfy CPLR 3021, a distinction does seem to have been drawn between an affidavit – i.e., a notarized statement – and a verification (Rule 3021 itself refers to an "affidavit of verification"). Analogously, see In re James Passero & Sons, 237 AD 638, 639, 261 NYS 661, 663 (4th Dept 1933), in which it was stated that "Verification . . includes both the actual swearing to the truth of the statements by the subscriber and also the certification thereto by the notary . . ."

In view of the foregoing, having reviewed the parties' submissions[1], IT IS ORDERED that claim no. 108032 be dismissed. Claimant may wish to consider making a motion for permission to file a late claim pursuant to §10.6 of the Court of Claims Act.

September 30, 2003
New York, New York

Judge of the Court of Claims

  1. [1]The following were reviewed: defendant's notice of motion with affirmation in support and exhibit A; and claimant's "Objection and Opposition" dated August 6, 2003 and filed August 15, 2003.