New York State Court of Claims

New York State Court of Claims

MUJICA v. THE STATE OF NEW YORK, #2003-028-530, Claim No. 104358, Motion No. M-64608


Case Information

RODRIGO H. MUJICA, SIMEON ALBERTO ALEJANDRO, TANIA ANTERO, DOUGA BA, ANGELA CHEN, RAUL CUESTA, RAUL DAVILA, CONSTANTINA DIAZ, MOUSTAPHA DIOP, BABACAR DIOUF, PA DRAMMEH, ASHRAF EL-SAWAF, ET. AL. The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant (see Court of Claims Act § 9).
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant (see Court of Claims Act § 9).
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
WARNER & SCHEUERMANBY: Jonathon D. Warner, Esq.
Defendant's attorney:
BY: Cornelia M. Mogor, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 10, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's motion for summary judgment pursuant to CPLR 3212:

1) Notice of Motion and supporting affidavits of
a) Lauren P. DeSole, Esq. (DeSole Affidavit) filed January 23, 2002, with annexed Exhibits A-K;
b) James J. Hennessey, Esq. (Hennessey Affidavit) filed January 23, 2002; and
C) Steven A. Lillienstein, Esq. (Lillienstein Affidavit) filed January 23, 2002.
2) Defendant's Memorandum of Law in Support.
3) Affirmation in Opposition of Jonathon D. Warner, Esq. (Warner Opposition) filed May 1, 2002, with annexed Exhibits 1-6.
4) Claimants' Memorandum of Law in Opposition.
5) Reply Affirmation of Assistant Attorney General Cornelia M. Mogor (Mogor Reply) filed July 2, 2002.
6) Defendant's Reply Memorandum of Law
6) Stipulation of Settlement received January 9, 2003[1]
7) Letter of Jonathon D. Warner, Esq. (Warner Letter) received January 23, 2003.
8) Letter of Assistant Attorney General Cornelia M. Mogor (Mogor Letter) received January 27, 2003.

Filed Papers: Claim filed June 1, 2001, Amended Claim filed August 30, 2001, Verified Answer filed August 6, 2001 and Amended Verified answer filed October 12, 2001.

This Claim was initiated by 34 claimants (Claim ¶ 1), individually and on behalf of "all other "voucher paid" and or per diem court interpreters not recognized as public employees, seeking damages in the nature of "payroll taxes, wages, benefits, vacation pay, sick pay, seniority and other rights and privileges owed to public employees" (Claim ¶ 5). The Defendant answered asserting affirmative defenses which included, inter alia, jurisdictional defenses of improper verification and untimeliness. Claimants thereafter served and filed an Amended Claim, similar in all other respects to the Claim, with the exception that four additional Claimants[2] were added and one deleted (Amended Claim ¶ 1). Defendant answered the Amended Claim raising the same affirmative defenses and the additional defense that the Amended Claim was not served in accordance with Court of Claims Act 10 (see Amended Answer) [3]

Before the Court can address whether the gravamen of the Claim falls within its jurisdiction, it must determine whether the pleading itself is in proper form to obtain the Court's jurisdiction. Defendant attacks the verification of the Claim and Amended Claim on two separate bases, the first is that only one of the Claimants has verified the Claim (Amended Answer ¶ 3) and that the verification is defective in form as it fails to state the basis of the deponent's knowledge and belief (Amended Answer ¶ 4; see also DeSole Affidavit ¶ 7-9)[4]. Claimants argue that the Claim is properly verified by a party who is "united in interest" with the other named and unnamed claimants and thus the verification requirement is satisfied (see, Claimants' Memorandum of Law in Opposition at Point IV).

The Court's analysis begins with the black letter principle that "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724; Lichtenstein v State of New York, 93 NY2d 911). Pursuant to Section 11 (b) of the Court of Claims Act"[t]he claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court." The Legislature prescribed the form of the affidavit of verification to be used in a Supreme Court action in Rule 3021 of the CPLR which states:
The 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. If it is made by a person other than the party, he must set forth in the affidavit the grounds of his belief as to all matters not stated upon his knowledge and the reason why it is not made by the party.
In Martin v State of New York, 185 Misc 2d 799, Judge Corbett rendered a well reasoned opinion which analyzed in detail the judicial treatment of the jurisdictional requirements contained in the Court of Claims Act and held that the complete lack of a verification was a jurisdictional defect which could not be waived and as such required dismissal of that action. (Id. at 804). In reaching this holding, Judge Corbett placed emphasis on the 1990 amendment to the Court of Claims Act which added § 11(c) to Court of Claims practice and which identified as the only waivable jurisdictional defects, defects in timeliness and manner of service, (Id. at 802-803). Subsequent cases have addressed various deficiencies in the form of verification with varying results (Pinckney v The State of New York, Ct Cl, Collins, J., January 9, 2002, Claim No. 104770, UID #2001-015-210,[claim which bore the signature of the claimant and the words "SWORN TO BEFORE ME ON 17 DAY OF August 2001," the signature of Notary Public and a stamp indicating the County of the Notary's qualification, a State issued identification number and the expiration date of the notary commission but lacked verification language was fatally defective]; see also Malloy v State of New York, Ct Cl, Read, P.J., December 10, 2001, Claim No. 104933, Motion No. M-64215 [unpublished opn] Pugliese v State of New York, Ct Cl, Midey, J., September 24, 2001, Claim No. 99992, UID #2001-009-045; [unverified claim is jurisdictionally defective]; Santos v The State of New York, Ct Cl, Lebous, J., July 24, 2002, Claim No. 105971, UID #2002-019-551, [the presence of a jurat, without a separate verification, does not satisfy the requirement of CCA 11 (b)]; Williams v State of New York, Ct Cl, Collins, J., August 17, 2001, Claim No.102081, UID #2001-015-171[unverified claim is jurisdictionally defective]; Morrison v State of New York, Ct Cl, Fitzpatrick, J., May 9, 2002, Claim No. 104475, UID #2002-018-136; but see, Abdullah v State of New York, Ct Cl, Bell, J., December 7, 2001, Claim No. 104525, UID #2001-007-141, [inexact verification does not rise to level of jurisdictional defect]). In Kipp v State of New York, (UID #2003-019-510, Claim No. 106686, Motion Nos. M-66116, CM-66180, Lebous, J.) the Court found the language used in the verification, which resembled the language familiar to real estate practitioners and found on recordable instruments[5], did not comply with CPLR 3021 and Court of Claims Act 11 (b) resulting in dismissal of that claim as jurisdictionally defective (see also Holman v State of New York, UID #2002-018-197, Claim No. 101699, Motion No. M-65652 Fitzpatrick, J. [filed claim must bear "complete verification"]). This Court is in agreement with the proposition that the failure to strictly comply with the verification requirement set forth in the Court of Claims Act is a fatal jurisdictional defect.

In the recent Third Department case of Lepkowski v State of New York, __ AD2d ___, 754 NYS2d 772, 2003 Slip Opinion 11242, February 20, 2003, Crew, J. P., the Appellate Court, over a dissent, dismissed two claims filed on behalf of 767 claimants seeking overtime compensation citing, inter alia, improper verifications. In Lepkowski, two separate claims - one on behalf of 390 claimants the other on behalf of 377 claimants - were each verified by a single claimant. The verifications did not state the basis of the deponent's knowledge (see Lepkowsi v State of New York , Ct Cl, Collins, J., UID #2001-015-175, Claim No. 97697, Motion No. M-63597 [unpublished opinion] rev'd __ AD2d ___, 754 NYS2d 772, 2003 Slip Opinion 11242, February 20, 2003). In reversing the lower court, which held that the verifications were effective, the Appellate Division acknowledged that CPLR 3020(d) permits a verification by parties united in interest but emphasized the requirement that the verification be by "at least one of them who is acquainted with the facts" (CPLR 3020[d]) when it stated "there is no evidence that the two claimants who verified the claims are acquainted with the factual premises for the remaining 765 claimants' entitlement to overtime compensation" (Lepkowski v State of New York, __ AD2d ___, 754 NYS2d 772). In light of the Lepkowski holding this Court is constrained to require that the verification made by a party united in interest establish the basis for his or her acquaintance with the facts. Applying Lepkowski to the Claim at bar, the Court finds the verification, made by a single claimant, without reference to the basis of his knowledge and belief, does not satisfy this requirement[6]. As such, the verification is defective. Inasmuch as the Claim suffers from a jurisdictional defect flowing from the improper verification of same, the Court lacks subject matter jurisdiction over the instant Claim.

Accordingly, Defendant's motion to dismiss the Claim is granted.[7]

April 10, 2003
Albany, New York

Judge of the Court of Claims

[1]Claimant forwarded a stipulation of settlement from a PERB proceeding which the instant motion was subjudice. As a consequence, the Court afforded the parties an opportunity to address the input, if any, of the stipulation on the motion.
[2] The four additional Claimants are Hauren He, Nabil Kassatly, Blanca Rodriguez and Xirong Wei.
[3] The Amended Claim, which neither alleges additional facts nor causes of action nor attempts to obviate a jurisdictional defect, and absent an objection from the Defendant, appears timely served (see CPLR 3025[a]), the Court accepts the Amended Claim as properly before it.
[4] The Court notes that while Claimants commenced the action "individually and on behalf of all others similarly situated" they have failed to move for certification of the class they purport to represent (see CPLR § 902 ) and notwithstanding Defendant's stated intention to move for summary judgment (Claimants' Memorandum of Law, p 8) Claimants' time to move expired before the instant motion was made (CPLR § 902).
[5] The at issue "verification" read as follows: "[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."
[6] This finding is reinforced by the acknowledgment of Claimants' counsel that there are "several different types of Claimants and classes of Claimants (Warner Affirmation ¶15).
[7] The Court does not reach the other branches of Defendant's motion for dismissal/ summary judgment.