New York State Court of Claims

New York State Court of Claims

MOATES v. STATE OF NEW YORK, #2003-018-201, Claim No. 100494, Motion No. M-65720


Synopsis


Defendant's motion to dismiss claim granted pursuant to Court of Claims Act §11(b).

Case Information

UID:
2003-018-201
Claimant(s):
ROBERT MOATES
Claimant short name:
MOATES
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100494
Motion number(s):
M-65720
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
LEONARD KOLLEENY, ESQUIRE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 6, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Defendant brings a motion to dismiss the claim for failure to comply with Court of


Claims Act §11(b), specifically failure to verify the claim. Claimant opposes the motion.

Court of Claims Act §11(b) requires 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 supreme court." This requirement has been held to be a jurisdictional prerequisite to maintaining an action in the Court of Claims (
Martin v State of New York, 185 Misc 2d 799). The failure to comply with the requirement of verification results in a fatal jurisdictional defect which cannot be waived or corrected by amendment (Martin v State of New York, supra; Grande v State of New York, 160 Misc 2d 383; Ferrer v State of New York, 172 Misc 2d 1; Malloy v State of New York, unpublished decision of Presiding J. Read, Ct Cl, signed December 10, 2001, Cl No 104933, Motion No. M-6421[5]).
Here, claimant simultaneously served a verified notice of intention and the unverified claim upon the attorney general on June 3, 1999. The claim was filed on June 4, 1999. On December 4, 2000, claimant filed an amended claim which was also unverified.

Despite defendant having failed to raise this defect as an affirmative defense in its answer, and having brought this motion
to dismiss three years after the date of accrual, thereby precluding a late claim application pursuant to Court of Claims Act §10(6) or a motion to treat the notice of intention as the claim pursuant to Court of Claims Act §10(8), the claim must be dismissed.
Accordingly, defendant's motion is GRANTED, and the claim is DISMISSED.


February 6, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court considered the following documents in deciding this motion:

Notice of Motion...................................................................................................1

Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney

General with exhibits attached thereto......................................................2


Affirmation by Leonard Kolleeny, Esquire in opposition.....................................3


Most unpublished decisions of the Court of Claims are available on the internet at www.nyscourtofclaims.state.ny.us/decisions.