New York State Court of Claims

New York State Court of Claims

YOUNG v. STATE OF NEW YORK, #2003-018-263, Claim No. 105841, Motion No. M-67006


Claim is dismissed as it is untimely.

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:
Defendant's attorney:
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 20, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant brings a motion to dismiss for lack of subject matter jurisdiction and/or

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 intention[1] 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 York, Ct Cl, Fitzpatrick, J, signed May 9, 2002, Claim No. 104475, Motion No. M-64078, [UID 2002-018-136][2]; 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 requirements.

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 "amended"[3] answer, (see, Court of Claims Act § 11[c]; Vogel v State of New York, supra).

Accordingly, the untimely claim must be dismissed. Based upon the foregoing, defendant's motion is GRANTED and the claim is dismissed.

October 20, 2003
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

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

Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney

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

Affirmation of William T. Martin, Esquire, in opposition...................................3

[1]Claimant has actually labeled the document defendant refers to as the notice of intention as a "Notice of Claim." For clarity herein, the document will be referred to as the notice of intention since claimant intended it as such (see, Martin affirmation).
[2]Most unpublished decisions of the Court of Claims are available on the internet at
[3]Defendant has labeled his answer to the claim an "amended answer". This is presumably because upon receipt of the notice of intention, labeled a "Notice of Claim" defendant prudently filed an answer in the event the "Notice of Claim" was intended to be a claim. However, claimant never filed the "Notice of Claim" and approximately a year later filed and served the "claim" for which defendant labeled his responsive pleading an "amended answer."