New York State Court of Claims

New York State Court of Claims

BEST v. STATE OF NEW YORK, #2003-018-244, Claim No. 103312, Motion Nos. M-67004, M-67069


Synopsis


Claim dismissed pursuant to CCA §§ 11(b).

Case Information

UID:
2003-018-244
Claimant(s):
BEN BEST
Claimant short name:
BEST
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103312
Motion number(s):
M-67004, M-67069
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
BEN BESTPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: HEATHER R. RUBINSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 19, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings a motion seeking dismissal on the grounds that the notice of intention in


this matter was not appropriately served in accordance with Court of Claims Act § 11(a)(i) and


that the claim was not properly verified in accordance with Court of Claims Act § 11(b).


Claimant opposes the motion and cross-moves for an order dismissing defendant's defense.


Without reaching the issue of service, the claim must be dismissed. 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 the 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). Despite defendant having failed to raise this defect as an affirmative defense in its answer; the failure to comply with the requirement of verification results in a fatal jurisdictional defect which cannot be waived or corrected by amendment, and may even be raised sua sponte (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Grande v State of New York, 160 Misc 2d 383; Ferrer v State of New York, 172 Misc 2d 1; Malloy v State of New York, unpublished decision of Presiding J. Read, Ct Cl, signed December 10, 2001, Cl No 104933, Motion No. M-64215).

Accordingly, defendant's motion is GRANTED, and the claim is DISMISSED.

Claimant's motion, M-67069, is hereby DISMISSED as moot.


August 19, 2003
Syracuse, New York

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


The Court has considered the following documents in deciding these motions:

M-67004

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

Affirmation of Heather R. Rubinstein, Esquire, Assistant Attorney

General, in support, with exhibits attached thereto..............................2


M-67069


Notice of Motion..............................................................................................3


Affidavit of Ben Best in support of his motion to dismiss defense..................4


Filed documents:


Claim.................................................................................................................5


Answer...............................................................................................................6