New York State Court of Claims

New York State Court of Claims

HERNANDEZ v. THE STATE OF NEW YORK, #2003-019-546, Claim No. 107513, Motion No. M-66739


State's motion to dismiss granted due to claimant's failure to properly verify claim in compliance with CCA 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: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
May 30, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


In lieu of an answer, the defendant State of New York (hereinafter "State") moves for dismissal pursuant to CPLR 3211 on the grounds this Court lacks jurisdiction. 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 March 21, 2003.
  2. Notice of Motion No. M-66739, dated April 23, 2003, and filed April 25, 2003.
  3. Affirmation of James E. Shoemaker, AAG, in support of motion, dated April 23, 2003, with attached exhibit.
This Claim alleges that on October 31, 2002, claimant was injured when a correction officer forced him to continue working despite claimant's need to rest due to a pre-existing leg condition. Claimant also alleges that he was improperly terminated from his Corcraft job due to his physical limitations. A Notice of Intention was served on the State on January 27, 2003 by certified mail, return receipt requested. The Claim was filed with the Clerk of the Court on March 21, 2003 and served on the Office of the Attorney General on that same date by certified mail, return receipt requested.

The State argues that dismissal is warranted because the Claim lacks a proper verification pursuant to CCA 11 (b). CCA 11 (b) dictates that a claim shall be verified in the same manner as a complaint in supreme court, thereby incorporating CPLR Article 30. More specifically, CPLR 3021 states, 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." A review of this Claim reveals that claimant simply signed his name below the "wherefore" clause. (Claim, p 4). There is no doubt that this Claim does not contain a formal verification pursuant to CPLR 3021.[1] It is well-settled that the failure to verify a claim 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 view of the foregoing, this Court finds that the failure to include a proper and separate verification violates CCA 11 (b). Accordingly, inasmuch as Claim No. 107513 does not contain a proper verification, it is jurisdictionally defective and must be dismissed.

Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-66739, is GRANTED and Claim No.107513 is DISMISSED.

May 30, 2003
Binghamton, New York

Judge of the Court of Claims

[1]Parenthetically, the Court notes that Claimant's Affidavit of Service and poor person application were signed and notarized. Nevertheless, even if this Court were to deem those jurats applicable to this Claim it would not satisfy 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...."]).