New York State Court of Claims

New York State Court of Claims

SHEARIN v. THE STATE OF NEW YORK, #2003-019-568, Claim No. 107306, Motion No. M-67084


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:
November 13, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant State of New York (hereinafter "State") moves for dismissal pursuant to CPLR 3211. Claimant opposes the motion.[1]

This claim alleges that claimant was stabbed on two separate occasions on December 12, 2001 and January 25, 2002 at Elmira Correctional Facility. Claimant initially appeared pro se in this matter and served two notices of intention in that capacity dated January 16, 2002 and March 11, 2002, respectively. Thereafter, claimant obtained counsel who then filed and served a claim on his behalf. Said claim was served on the Attorney General's office on February 3, 2003 and filed with the Clerk of the Court on February 10, 2003. The State filed a Verified Answer on March 5, 2003 containing various affirmative defenses including, but not limited to, the failure to properly verify the claim. (Verified Answer, Second Affirmative Defense, ¶ 8). On July 7, 2003, approximately 5 months later, claimant filed an amended claim with the Clerk of the Court which was similar in all respects to the original claim, except the amended claim included an attorney's verification. The State rejected and returned the amended claim as improper on July 7, 2003. (State's Exhibit G).

By way of this motion, the State seeks to dismiss the original claim because it lacks a verification pursuant to CCA 11 (b). Claimant's opposing papers contain what appear to be multiple requests for alternate forms of affirmative relief including: amendment of the claim; a nunc pro tunc order accepting the claim as proper; permission to withdraw the claim and re-serve and re-file a new claim; permission to late file pursuant to CCA 10 (6); and summary judgment relief on the merits of the underlying claim. To the extent that claimant's opposing papers request affirmative relief, the court notes that claimant has failed to include a proper "notice of cross-motion" and, as such, the requests for affirmative relief are not properly before the court. (Matter of Briger, 95 AD2d 887, 888; CPLR 2215).

That having been said, however, certain points warrant discussion. 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 February 10, 2003 did not contain a verification pursuant to CPLR 3021. Claimant's argument that such failure is inconsequential and without any resulting prejudice to the State is unavailing. As stated by then Presiding Judge Susan Phillips Read:

[w]hile the Court of Claims Act provides that the verification should be completed pursuant to the Civil Practice Law and Rules, the unique jurisdictional requirements of this Court and the "State's limited waiver of sovereign immunity" [citation omitted] compel a departure from the CPLR and return to the Court of Claims Act when analyzing the effect of a claimant's failure to verify a pleading [citation omitted].

(Malloy v State of New York, Ct Cl., December 12, 2001, Read, P.J., Claim No. 104933, Motion No. M-64215). Stated another way, 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, 385). As such, the original claim filed on February 10, 2003 which lacks a verification is jurisdictionally defective and must be dismissed.

Furthermore, as noted above, claimant's filing and service of an amended claim 5 months later is also improper since a jurisdictional defect may not be cured by way of an amendment. In other words, even if claimant had timely sought such leave under CPLR 3025 (a), 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. For these same reasons, this court is without the discretion to issue a nunc pro tunc order deeming the claim to be proper.[2] (Matter of Welch v State of New York, 71 AD2d 494, lv denied 50 NY2d 802; Martin, 185 Misc 2d at 805).

The court will leave to claimant whether he pursues the filing and serving a new claim before the expiration of the applicable limitation periods. (Thompson Affirmation, ¶ 10).

Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-67084, is GRANTED and Claim No. 107306 is DISMISSED in its entirety.

November 13, 2003
Binghamton, New York

Judge of the Court of Claims

The Court has considered the following papers in connection with this motion:

  1. Claim, filed February 10, 2003.
  2. Verified Answer, filed March 5, 2003.
  3. Amended Claim, filed July 7, 2003.
  4. Notice of Motion No. M-67084, dated July 8, 2003 and filed July 10, 2003.
  5. Affirmation of Joseph F. Romani, AAG, in support of motion, dated July 8, 2003, with attached exhibits.
  6. Affirmation of Adam Thompson, Esq., in opposition to motion, undated, and filed November 3, 2003, with attached exhibits.

[1]This matter was originally returnable on August 20, 2003, but was adjourned twice at the request of claimant's counsel in order to permit time to prepare an adequate response and to file a motion for summary judgment. (Undated letters received from Adam M. Thompson, received August 29, 2003 and September 22, 2003). The latest return date was October 29, 2003. Despite these multiple adjournments, claimant's papers were not filed with the Clerk of the Court until November 3, 2003. Nevertheless, the court, in its discretion, will consider these late papers. (CPLR 2214 [b]; 22 NYCRR 206.9).

[2]With respect to claimant's references to CCA 10 (6), it seems that claimant included these references for purposes of analogy only. For instance, claimant states "[t]o compare the situation where a notice is late, which is no where near the situation here, the court would allow a late filing under these circumstances" and "[a]pplying the thrust of Section 10 (6) to the instant motion makes it clear claimant's application should be granted." (Thompson Affirmation, ¶ ¶ 11 & 13; emphases added). Moreover, as noted by claimant's counsel himself, 10 (6) relief is not necessary since claimant served timely notices of intention and may choose to file and serve a new claim without the need for permission. Claimant's references to summary judgment are equally limited. For example, the moving papers reference Sanchez v State of New York, 99 NY2d 247, and merely state "[i]t support [sic] summary judgment for the claimant on these facts as a matter of law." (Thompson Affirmation, ¶ 20). In any event, in view of the disposition herein, the court need not consider claimant's request for summary judgment any further.