KIPP v. THE STATE OF NEW YORK, #2003-019-510, Claim No. 106686, Motion Nos.
State's motion to dismiss granted due to Claimant's failure to properly verify
claim in compliance with CCA 10 and 11; Claim dismissed. Claimant's cross-motion
for permission to late file is granted.
LEWIS and PAMELA KIPP
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
DAVID B. KEEFFE, ESQ.
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
January 28, 2003
See also (multicaptioned
The defendant State of New York (hereinafter "State") moves for dismissal
pursuant to CPLR 3211 on the grounds this Court lacks jurisdiction. Claimants
oppose the motion and cross-move for alternate forms of relief including
permission to file and serve a late claim pursuant to Court of Claims Act
(hereinafter "CCA") 10 (6).
The Court has considered the following papers in connection with these
Claim, filed September 25, 2002.
Amended Claim, filed November 13, 2002.
Verified Answer, filed December 5, 2002.
Notice of Motion No. M-66116, dated December 2, 2002, and filed December 5,
Affirmation of James E. Shoemaker, AAG, in support of motion, dated December 2,
2002, with attached exhibit.
Notice of Cross-Motion No. CM-66180, dated December 26, 2002, and filed
December 30, 2002.
Affidavit of David B. Keeffe, Esq., in support of cross-motion, sworn to
December 26, 2002, with attached exhibits.
Proposed Claim, dated December 26, 2002.
Affirmation of James E. Shoemaker, AAG, in opposition to cross-motion, dated
January 2, 2003, and filed January 6, 2003, with attached exhibit.
Copy of letter from James E. Shoemaker, AAG to David B. Keeffe, Esq., dated
January 22, 2003.
This Claim alleges that on August 15, 2002, Claimant Lewis Kipp was operating a
vehicle on State Route 17C in the Town of Tioga, State of New York when his
vehicle was struck by a State Department of Transportation dump truck
negligently operated by a State employee named Randy W. Bennett. The Claim was
filed in the Office of the Clerk on September 25, 2002 and personally served on
the Office of the Attorney General on October 28, 2002. An Amended Claim was
filed on November 13, 2002. There is no accompanying affidavit of service on
the Attorney General for the Amended Claim. The State filed a Verified Answer
on December 5, 2002 containing an affirmative defense asserting the Claim was
unverified as required by CCA 11. (Verified Answer, ¶ 5). In a letter to
Claimant's counsel from the State dated January 22, 2003, the State indicates
that it was rejecting as defective the Amended Claim served on December 26,
State's Motion to Dismiss (M-66116)
The State argues that dismissal of the Claim is warranted because it lacks a
proper verification pursuant to CCA 11 (b).
review of this Claim reveals that both Claimants simply signed their names below
the "wherefore" clause. (Claim, p 5). There is no notary stamp or notary
signature on that page. The next page of the Claim reveals a separate notary
signature and seal for each Claimant under the following:
[o]n the [date], before me personally came and appeared [Claimant's name], to me
known and known to me to be the individuals described in and who executed the
foregoing instrument, and who duly acknowledged to me that they executed
(Claim, p 6).
The requirements of CPLR 3021 are quite clear and state, in 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." There is no doubt that this Claim does not contain a formal verification
pursuant to CPLR 3021.
It is well-settled
that the failure to verify a claim pursuant to CCA 11 (b) and CPLR 3021 is a
non-waivable jurisdictional defect that may not be cured by way of an amendment.
(Martin v State of New York
, 185 Misc 2d 799, 804; Grande v State of
, 160 Misc 2d 383; see also Malloy v State of New
, Ct Cl, December 12, 2001, Read, P.J., Claim No. 104933, Motion No.
In this view of the foregoing, this Court finds that the failure to include a
proper and separate verification in accordance with CPLR 3021 violates the
requirement of CCA 11 (b). Accordingly, inasmuch as Claim No. 106686 does not
contain proper verifications it is jurisdictionally defective and must be
Claimants' Cross-Motion (CM-66180)
move for three alternate forms of
relief including an order: (1) dismissing the State's affirmative defense
asserting a lack of verification as untimely; (2) permission to serve (another)
amended claim containing a proper verification; or (3) permission to late file
pursuant to CCA 10 (6). The first two options are quickly disposed of as
meritless. With respect to the timeliness of the State's Answer, the original
claim was filed on September 25, 2002 and served on October 28, 2002. The
Amended Claim was filed on November 13, 2002. The State's Verified Answer was
filed on December 5, 2002. Apparently the State was not served with the Amended
Claim until December 26, 2002 and subsequently rejected the same. In any event,
according to 22 NYCRR 206.7, the State has 40 days from service of the pleading
within which to serve an answer. Here, the State's Verified Answer was timely
served within the 40 day answering period from the original claim. The State
was under no obligation to advise the Claimant of this jurisdictional defect any
sooner or in any manner other than by a timely answer or motion to dismiss.
Claimant's motion to strike the State's first affirmative defense as untimely is
denied. Secondly, Claimant seeks permission to file and serve an amended claim
containing a proper verification pursuant to CPLR 3025. However, it is
well-settled that jurisdictional defects cannot be cured by way of amendments
and that the lack of a verification is such a jurisdictional defect.
, 160 Misc 2d at 385; Martin
, 185 Misc 2d 799).
Accordingly, Claimant's request for permission to amend his claim is
The Court will next turn to that portion of Claimant's motion seeking
permission to file a late claim pursuant to CCA 10 (6). As a threshold matter,
the Court notes that it has the jurisdiction to hear and determine this matter
since the motion was filed within three years from the date of accrual which is
the comparable time period for bringing negligence actions against a citizen of
the state. (CPLR 214; CCA 10 ).
Turning to the substance of the cross-motion, the factors the Court must
consider in determining a properly framed CCA 10 (6) motion are whether:
1. the delay in filing the claim was excusable,
2. the State had notice of the essential facts constituting the claim,
3. the State had an opportunity to investigate the circumstances underlying the
4. the claim appears to be meritorious,
5. the failure to file or serve upon the attorney general a timely claim or to
serve upon the attorney general a notice of intention resulted in substantial
prejudice to the State, and
6. there is any other available remedy.
The most prominent factor for consideration is whether the proposed claim
appears meritorious, since it would be futile to permit a meritless claim to
proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d
1, 10). In order to establish a meritorious claim, Claimant must establish that
the proposed claim is not patently groundless, frivolous, or legally defective
and that there is reasonable cause to believe that a valid claim exists.
(Id. at 11). Claimant has submitted a proposed claim entitled as a
"Second Amended Claim" which is properly verified by Claimants.
Initially, the Court recognizes the well-settled principle that "[f]acts stated
in a motion for leave to file a late claim against the State are deemed true for
purpose of motion, when not denied or contradicted in opposing affidavits."
(Sessa v State of New York
, 88 Misc 2d 454, 458, affd
63 AD2d 334,
47 NY2d 976). Here, Claimant alleges that the State vehicle crossed
into his lane of travel.
C, ¶ 7). As such, this allegation will be accepted as true unless the
State denies or contradicts it in opposing affidavits from someone with
firsthand knowledge. (Calzada v State of New York
, 121 AD2d 988, 989).
In opposition, the State has submitted an attorney's affirmation, together with
the police accident report from this incident. The State points to the portion
of the "Accident Description/Officer's Notes" section of said report wherein the
responding officer notes therein that it was Claimant's vehicle, not the State
vehicle, that crossed into the opposing lane of travel causing the incident.
(Affirmation in Opposition of James E. Shoemaker, AAG, ¶ 10; State's
Exhibit A). The Court finds that this description in the police accident report
is insufficient to overcome the presumption to which Claimant's allegations are
entitled because the officer's notes are not based upon his firsthand knowledge
of the incident. Consequently, the Court finds that the proposed claim appears
As to the remaining factors, starting with the proffered excuse for the delay,
Claimant argues that there has been no delay pointing to his timely filed and
served claim, albeit with a defective verification. In short, and contrary to
Claimant's view, he did not satisfy CCA 10 and 11 by timely serving and filing a
jurisdictionally defective claim. In this Court's view, Claimant's failure to
properly verify his claim and thereby causing the delay may be equated to an
ignorance of the law argument which has uniformly been rejected as an adequate
excuse. (Innis v State of New York, 92 AD2d 606, affd 60 NY2d
654). This factor weighs against Claimant.
The next three factors of notice of the essential facts constituting the claim,
opportunity to investigate and prejudice involve analogous considerations and
will be discussed together. The State does not substantively address these
factors which in this Court's view equates to a tacit concession that they favor
the Claimant. In any event, there can be no dispute that the originally served
and filed claim, albeit now dismissed, was adequate to provide notice to the
State of the essential facts of this case within the statutory period. As such,
a finding of an opportunity to investigate and a lack of substantial prejudice
naturally follow. The Court finds these three factors weigh in Claimant's
Finally, no alternate remedy has been identified by either party. The Court
finds this factor weighs in Claimant's favor.
Based upon the foregoing, upon reviewing and balancing all of the factors
enumerated in CCA 10 (6), the Court finds that five of the six statutory
factors, including the all important issue of merit, weigh in favor of granting
Claimant's motion for permission to late file.
Accordingly, for the reasons stated above, it is ORDERED that the State's
motion to dismiss, Motion No. M-66116, is GRANTED and Claim No. 106686 is
IT IS FURTHER ORDERED that Claimant's cross-motion for permission to late file,
CM-66180, is GRANTED. Claimant shall file a claim with the Clerk of the Court
and serve a copy of the claim upon the attorney general within sixty (60) days
from the date of filing of this Decision and Order with the Clerk of this Court.
The new claim should be revised to be entitled as a "claim", rather than a
"second amended claim", but should in all other respects mirror the proposed
second amended claim. The service and filing of the new claim shall be in
conformity with all applicable statutes and rules of the Court with particular
reference to CCA 10, 11 and 11-a.
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court
The filing, service and subsequent rejection
of service of the Amended Claim do not alter the disposition of this motion
since the form of the signature pages and attempted verification are identical
in both the original claim and the amended claim.
Parenthetically, the Court notes even if
Claimants' signatures on page 5 of the Claim had included a jurat it would not
have satisfied the verification requirement of CCA 11 (b). Previous cases
involving similar situations have generally, with one exception, found the
presence of a jurat does not equate to verification. (Pinckney v State of
, Ct Cl, January 9, 2002, Collins, J., Claim No. 104770, Motion Nos.
M-64090 & M-64218 [UID No. 2001-015-210], [signature with jurat does not
equate to verification; claim dismissed]; Morrison v State of New York
Ct Cl, May 9, 2002, Fitzpatrick, J., Claim No. 104475 et al., Motion No. M-64078
et al., [UID No. 2002-018-136], [signature appears with jurat, but without
verification; claim dismissed]; but see Abdullah v State of New York
Cl, December 7, 2001, Bell, J., Claim No. 104525, Motion No. M-64269 [UID No.
2001-007-141], [signature with jurat, but without verification; "[i]t is
nevertheless evident...that claimant understood he was swearing to the truth of
The Court will use the term "Claimant" solely
to refer to Lewis Kipp, since the claim of Pamela Kipp appears to be derivative
The Court does not find Mr. Howell's statement
particularly useful for several reasons including its lack of clarity and that
Mr. Howell did not witness the accident. (Claimant's Exhibit D). Moreover,
Claimant's counsel's reference to an accident reconstructionist's opinion,
without any supporting affidavit, is useless. (Affirmation of James E.
Shoemaker, AAG, ¶ 10; Exhibit A).