New York State Court of Claims

New York State Court of Claims

GILBERT v. THE STATE OF NEW YORK, #2003-028-542, Claim No. 107171, Motion Nos. M-66342, CM-66500


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:
BY: G. Lawrence Dillon, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 30, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the Defendant's CPLR 3211 motion for dismissal of this

claim and on Claimants' cross motion to serve an amended Notice of Intention:

1. Notice of Motion, and Supporting Affirmation of Assistant Attorney General G. Lawrence Dillon, filed January 10, 2003 with annexed Exhibits A-C (Dillon Affirmation);

2. Notice of Cross-Motion and Affirmation in Support/Opposition of Joseph L. Lucchesi, Esq., filed March 7, 2003 with annexed Exhibits A-F (Lucchesi Affirmation);

3. Affirmation in Opposition to the Cross-Motion of Assistant Attorney General G. Lawrence Dillon, filed March 24, 2003 with annexed Exhibit A (Dillon Opposition);

4. Letter dated March 28, 2003 from Joseph L. Lucchesi, Esq.

Filed papers: Notice of Claim, filed January 9, 2003; Amended Claim January 27, 2003.

Defendant has timely moved by pre-answer motion to dismiss the instant claim asserting, inter alia, the Court lacks subject matter and/or personal jurisdiction as neither the "Notice of Intention to File Claim[1]" nor the "Notice of Claim"[2] was properly verified (Dillon Affirmation ¶ 5) and that by virtue of the defective "Notice of Intention to File Claim" the "Notice of Claim" is untimely filed (Dillon Affirmation ¶10; see also Court of Claims Act § 11[c]).

Claimant, in apparent recognition of the foregoing defects, served a cross motion for "leave to serve an Amended Notice of Intention to Make Claim" (see Notice of Cross-Motion and Lucchesi Affirmation, ¶ 2) pursuant to General Municipal Law (GML) § 50-e (id.). Defendant opposes the cross-motion as being improperly brought pursuant to GML § 50-e, Court of Claims Act § 10(6) being the proper vehicle (Dillon Opposition, ¶ 5) and that there is no provision for an "Amended Notice of Intention to Make Claim" in the Court of Claims Act (id. at ¶ 7). Claimant, again in apparent recognition of the defect in the application, requested that the Court evaluate the cross-motion in light of the §10(6) factors (Lucchessi letter).

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.
Clearly, neither the "Notice of Intention to Make a Claim" (see Lucchesi Affirmation, Exhibit A) nor the Notice of Claim (id. at Exhibit B) have satisfied this requirement as each has omitted the foregoing language and therefore, each suffers from a fatal jurisdictional defect (Graham v Goord, 301 AD2d 882; Martin v State of New York, 185 Misc 2d 799; Pinckney v 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]). By virtue of the foregoing, Claimant's Notice of Intention is deemed a nullity (see Edens v State of New York, 259 AD2d 729).

Turning to the cross-motion, the Court declines the invitation to adapt the cross-motion to the proper statutory framework for evaluation. Even if it were to do so, as Defendant correctly points out, a notice of intention is not subject to amendment. Moreover, a jurisdictional defect may not be cured by amendment (see Charles v State of New York, Ct Cl, Lebous, J., Claim No. 105149, Motion No. M-66443, UID #2003-019-529, March 25, 2003).

Lost in this procedural quagmire is the filed Claim which is brought on behalf of an infant claimant (date of birth October 14, 1985) by his parents for injuries allegedly sustained while in the care and custody of the Defendant's Office of Children and Family Services (see Lucchesi Affirmation, Exhibit B). Notwithstanding the three strikes by Claimant's counsel and the legal discussion herein, it would appear the infant's claim may still be filed as of right (see Court of Claims Act §10[5]; CPLR § 208; see also Henry v City of New York, 94 NY2d 275, 279).

Accordingly, the Defendant's motion to dismiss the Claim is hereby GRANTED and the

Claimant's cross-motion is DENIED, without prejudice.

May 30, 2003
Albany, New York

Judge of the Court of Claims

[1] Claimant has mislabeled this document. The Court of Claims Act provides for a notice of intention and a claim (see Court of Claims Act § 11).
[2] See footnote 1, supra.