Defendant brings a motion to dismiss for lack of subject matter jurisdiction
personal jurisdiction. Claimant opposes defendant's motion.
Defendant argues that the Court does not have subject matter jurisdiction to
hear the claim because claimant never verified the notice of
which he timely and properly served
upon the defendant. Claimant argues that the purpose of a notice of intention
is to provide prompt and adequate notice of the claim, and because it is not a
pleading it must not be scrutinized under the same standards required for the
claim. Claimant further argues that there is no language in Court of Claims Act
§ 11(b) which deems a notice of intention that is not properly verified a
nullity, because only "substantial compliance" with § 11 is required (see
Affirmation in Opposition page 2, paragraph 9). The claim, filed with the Clerk
of the Court on April 2, 2002, was properly verified.
The difficulty with claimant's argument is that Court of Claims Act §
11(b), specifically requires that both
the claim and the notice of
intention to file a claim "be verified in the same manner as a complaint in an
action in the supreme court"(Court of Claims Act § 11[b]). To be properly
verified, a complaint in Supreme Court must contain an affidavit of verification
providing 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"(CPLR 3021). Claimant's signature
and jurat on the "Notice of Claim" does not equate with "substantial compliance"
with the § 11(b) requirements for verification (Morrison v State of New
Ct Cl, Fitzpatrick, J, signed May 9, 2002, Claim No. 104475, Motion
No. M-64078, [UID 2002-018-136]
; Pinckney v
State of New York,
Ct Cl, Collins, J, signed January 9, 2002, Claim No.
104770, Motion Nos. M-64090 & M-64218, [UID 2001-015-210]; Hernandez v
State of New York,
Ct Cl, Lebous, J, signed May 30, 2003, Claim No. 107513,
Motion No. M-66739, [UID 2003-019-546]).
The failure to serve a notice of intention conforming to the requirements of
Court of Claims Act §§ 10 and 11 renders a claim which has not been
served within 90 days of the date of accrual untimely (Court of Claims Act
§§10(3) and 10( 3-b); see, Martin v State of New York, 185 Misc
2d 799; Vogel v State of New York, 187 Misc 2d 186).
In this case, although the claim fully complied with the requirements of Court
of Claims Act § 11(b), it was not served and filed within 90 days of the
date of accrual, and without the benefit of the extension of time for service
and filing authorized by service of a proper notice of intention it is untimely.
Compliance with Court of Claims Act §§ 10 and 11 are necessary
prerequisites to maintaining an action against the State, which waived its
sovereign immunity conditioned upon abidance with the Court of Claims Act
Although, unlike an unverified claim, the notice of intention verification
defect can be waived if not timely raised with particularity, here defendant
timely and appropriately raised the objection in its
answer, (see, Court of Claims Act
§ 11[c]; Vogel v State of New York
Accordingly, the untimely claim must be dismissed. Based upon the foregoing,
defendant's motion is GRANTED and the claim is dismissed.
The Court has considered the following documents in deciding this motion:
Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney
General, in support, with exhibits attached
Affirmation of William T. Martin, Esquire, in