New York State Court of Claims

New York State Court of Claims

CHARLES v. THE STATE OF NEW YORK, #2003-019-529, Claim No. 105149, Motion No. M-66443


State's motion to dismiss granted due to Claimant's failure to properly verify claim in compliance with CCA 10 and 11; Claim dismissed.

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: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 25, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant State of New York (hereinafter "State") moves for dismissal pursuant to CPLR 3211. The Court has not received any papers in opposition by or on behalf of Claimant.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed October 31, 2001.
  2. Verified Answer, filed October 29, 2001.
  3. Amended Claim, filed September 23, 2002.
  4. Notice of Motion No. M-66443, dated February 13, 2003, and filed February 24, 2003.
  5. Affirmation of Joseph F. Romani, AAG, in support of motion, dated February 13, 2003, with attached exhibits.
This Claim relates to the period of September 23, 2000 through September 27, 2000 during which time Claimant alleges he was wrongfully confined in an observation room at Southport Correctional Facility. A Notice of Intention was served on the Attorney General's office on December 4, 2000. This Claim was originally filed in the Office of the Clerk on October 31, 2001. The State filed a Verified Answer on October 29, 2001 containing various affirmative defenses including, but not limited to, the failure to properly verify said Claim. (Verified Answer, ¶ 6). Almost one year later, on September 23, 2002, Claimant filed another Claim in the Office of the Clerk containing the same allegations, this time including a proper verification. Although not labeled as such, the Clerk of the Court properly deemed said filing to be an Amended Claim subject to whatever legal objections may apply. (Letter from Clerk of the Court dated February 3, 2003).

By way of this motion, the State seeks to dismiss the original Claim because it lacks a proper verification pursuant to CCA 11 (b) and to dismiss the amended Claim because it was filed without Court permission required under CPLR 3025.

CPLR 3021 clearly sets forth the requirements for a proper verification as follows: "[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 the Claim originally filed on October 31, 2001 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 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). For this very reason, Claimant's attempt nearly one year later to file an Amended Claim containing a proper verification must fail as a matter of law. Additionally, Claimant's filing of an Amended Claim a year after the original also violated CPLR 3025. More specifically, because Claimant was beyond the time periods in which he could amend his pleadings without leave under CPLR 3025 (a), he was required to seek Court leave pursuant to CPLR 3025 (b). Assuming, arguendo, that Claimant had sought such leave, this Court would have been bound by the aforementioned principle that a non-waivable jurisdictional defect such as lack of a verification may not be cured by way of an amendment and would have been compelled to deny such an application.

In view of the foregoing, this Court finds that Claim No. 105149 is jurisdictionally defective in both its original and amended forms and must be dismissed.

Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-66443, is GRANTED and Claim No. 105149, both the originally filed Claim and the Amended Claim, are DISMISSED.

March 25, 2003
Binghamton, New York

Judge of the Court of Claims