New York State Court of Claims

New York State Court of Claims

KIPP v. THE STATE OF NEW YORK, #2003-019-510, Claim No. 106686, Motion Nos. M-66116, CM-66180


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.

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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
January 28, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


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 motions:
  1. Claim, filed September 25, 2002.
  2. Amended Claim, filed November 13, 2002.
  3. Verified Answer, filed December 5, 2002.
  4. Notice of Motion No. M-66116, dated December 2, 2002, and filed December 5, 2002.
  5. Affirmation of James E. Shoemaker, AAG, in support of motion, dated December 2, 2002, with attached exhibit.
  6. Notice of Cross-Motion No. CM-66180, dated December 26, 2002, and filed December 30, 2002.
  7. Affidavit of David B. Keeffe, Esq., in support of cross-motion, sworn to December 26, 2002, with attached exhibits.
  8. Proposed Claim, dated December 26, 2002.
  9. Affirmation of James E. Shoemaker, AAG, in opposition to cross-motion, dated January 2, 2003, and filed January 6, 2003, with attached exhibit.
  10. 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, 2002.

  1. 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).[1] A 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 same.

(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.[2] 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 New York, 160 Misc 2d 383; see also Malloy v State of New York, Ct Cl, December 12, 2001, Read, P.J., Claim No. 104933, Motion No. M-64215).

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 dismissed.

  1. Claimants' Cross-Motion (CM-66180)
Claimants[3] 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. (Grande, 160 Misc 2d at 385; Martin, 185 Misc 2d 799). Accordingly, Claimant's request for permission to amend his claim is denied.

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 [6]).

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 claim,

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, affd 47 NY2d 976). Here, Claimant alleges that the State vehicle crossed into his lane of travel.[4] (Claimant's Exhibit 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 meritorious.

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 favor.

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 DISMISSED; and

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.

January 28, 2003
Binghamton, New York

Judge of the Court of Claims

[1]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.
[2]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 New York, 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, Ct 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 claim...."]).
[3]The Court will use the term "Claimant" solely to refer to Lewis Kipp, since the claim of Pamela Kipp appears to be derivative in nature.
[4]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).