In reaching its decision, the Court has read and considered the following
(1) Notice of Motion to Dismiss State's Affirmative Defenses and Supporting
Affirmation of Barry C. Scheck, Esq. (hereinafter referred to as Scheck
Affirmation) with annexed Exhibits "1-8" filed on November 29, 2002; Memorandum
of Law in Support;
(2) Notice of Cross-Motion for Summary Judgment and Dismissal, and Supporting
Affirmation of Assistant Attorney General Leslie A. Stroth (hereinafter referred
to as Stroth Affirmation) with annexed Exhibits "A-F" filed March 11,
(3) Reply Affirmation of Barry C. Scheck, Esq. (hereinafter referred to as
Scheck Reply) filed March 25, 2003;
(4) Defendant's Reply Affirmation of Assistant Attorney General Leslie A. Stroth
(hereinafter referred to as Stroth Reply) filed April 14, 2003;
(5) letter from Barry C. Scheck, Esq. dated April 18, 2003;
(6) letter from Assistant Attorney General Leslie A. Stroth dated May 5, 2003;
(7) letter from Barry C. Scheck, Esq. dated May 9, 2003 received May 12, 2003;
(8) letter from Assistant Attorney General Leslie A. Stroth dated May 13, 2003;
(9) letter from Barry C. Scheck, Esq. dated June 17, 2003.
Filed papers: Claim
; Answer On April 13, 1995
the Claimant, Lee Long, was convicted of first degree rape and robbery and two
counts of sexual abuse in the first degree. He was sentenced to two terms of
eight to twenty-four years. On April 28, 1997 Mr. Long's judgment of conviction
was unanimously affirmed by the Appellate Division. On July 23, 1997, his
application for leave to appeal to the New York State Court of Appeals was
On March 9, 2000, after a post-conviction investigation, the Legal Aid Society
filed a Notice of Motion seeking to set aside the conviction. On June 23, 2000
Justice Joseph G. Golia issued an Order vacating the judgment of conviction and
dismissing the indictment (Exhibit "C" annexed to Notice of Cross-Motion).
Thereafter, a Memorandum dated June 26, 2000 was issued by Justice Golia
(Exhibit "D" annexed to Notice of Cross-Motion). Finally, on May 28, 2002
Justice Golia issued another Decision and Order which sought to reach issues
upon which he had "reserved" two years earlier (Exhibit "E" annexed to Notice
A claim was filed on
behalf of the Claimant on June 26, 2002 (Exhibit "A" annexed to Notice of Cross-
The first issue, fully developed by the parties herein, concerns the timeliness
of the claim. The Defendant contends that the claim is untimely having been
filed over two years after Justice Golia's Order vacating the Judgment of
conviction and dismissing the indictment. Claimant argues, the time should be
computed from May 28, 2002, when Justice Golia issued his second Decision and
Section 8-b of the Court of Claims Act provides in pertinent part: "[a]ny
person claiming compensation under this section based on ... the dismissal of an
accusatory instrument that occurred on or after the effective date of this
section shall file his claim within two years after the... dismissal." (Court
of Claims Act §8-b(7)).
In order to discern when the statute of limitations commences for the purpose
of Court of Claims Act 8-b, the Court must interpret prior case law regarding
the Court of Claims Act in general, as well as the legislative history of the
specific section in question.
This Court has consistently held that the State's limited waiver of sovereign
immunity gives rise to a strict interpretation of the filing requirements
(see Alston v State of New York, 97 NY2d 159). The adoption of
Court of Claims Act §8-b in no way altered the aforementioned. The
legislative history of Section 8-b also indicates that the claim be brought
within two years after the accusatory instrument was dismissed (Report of the
Law Review Commission for 1984, McKinney's Session Laws of New York at pp
The attorney for the Claimant contends that Section 8-b requires only that the
vacatur be on the grounds enumerated in Section 8-b (3)(b)(ii) and not the
dismissal. Therefore, counsel argues the statute does not begin to run until
the vacatur's grounds are stated – which in the present case was on May
28, 2002, when Justice Golia issued his amendment to the initial Order (Scheck
Reply, pp 8-18). The attorney for the State argues that the time to file begins
to run when the Order dismissing the accusatory instrument was signed –
here June 23, 2000 (Stroth Reply, pp 2-10).
The Court has reviewed the litany of cases cited by the parties. After having
done so, the Court finds that the statute of limitations began to run on June
23, 2000, when Justice Golia issued an Order dismissing the accusatory
instrument. Not only does the language of Section 8-b provide that the
purported claimant: "...shall file his claim within two years after ...[the]
dismissal." (§8-b(7)), but also the legislative history contains the same
language (Report of the Law Review Commission for 1984, McKinney's Session Laws
of New York at p 2934).
This interpretation is supported by the Appellate Division's decision in the
case of Stewart v State of New York
(133 AD2d 112, lv denied
NY2d 807). In that case the claimant brought an action pursuant to Section 8-b,
but failed to submit documentary evidence that "the accusatory instrument was
dismissed on any one of the limited grounds enumerated under Court of Claims Act
§8-b(3)(b)" (Stewart v State of New York, supra,
The Court, therefore, affirmed a
dismissal of the claim. The decision clearly indicates that a dismissal of the
accusatory instrument must be upon the enumerated grounds in order for the Court
to entertain the claim.
Claimant's attorney's argument that the claim did not arise until after Justice
Golia's supplemental decision (Memorandum of Law in Support of Motion to Dismiss
Affirmative Defenses, p 14 et seq.) is not convincing. If one were to
accept counsel's logic, actions could be commenced at any time – even
long after the two year period – as long as a supplemental, amended or
revised order incorporated the enumerated grounds. Clearly this was not the
intent of the Legislature in passing the instant section. Had it wished to
start the limitation clock running from the use of the formulaic words, it could
have stated that the statute of limitations shall expire two years from the
"accrual of such claim" (see e.g. Court of Claims Act §§10(3),
(3-a) and (4)).
The fact that there may be instances where an individual will not recover
because the dismissal of the accusatory instrument and the vacatur of the
Judgment of conviction did not contain the enumerated grounds was considered by
the Legislature in creating the balance. However, the Legislature believed that
a specific time needed to be set in order to protect the State from stale
claims. In the present case, it was only because of the extraordinary actions
of Justice Golia in issuing an "amended" order that the Claimant had any right
to bring this action. Despite his statement that he reserved on the issue of
vacatur based upon "newly discovered evidence," it is clear that his original
Memorandum never reserved on the issue and also that a fair reading of that
decision indicated that the Justice considered the ground of newly discovered
evidence a "...nettlesome legal problem that could effectively prevent this
Court from granting the motion presently before it." (Exhibit 5 annexed to
claim, p 7 [paginated]). Accordingly, in his Memorandum Justice Golia relied
upon other grounds to support his dismissal of the indictment, namely the
interests of justice.
Turning now to the issue of verification.
On June 26, 2002, the instant claim was filed. It was not verified by the
Claimant, who resided outside the state, but rather by his attorney, Mr.
Section 8-b (4) provides in pertinent part: "[t]he claim shall be verified by
the claimant." The Legislature in enacting this portion of Section 8-b again
sought a balance between one unjustly convicted and the burden of frivolous
claims; therefore, it required two things of such claims: (i) documentary
evidence of a conviction and innocence; and (ii) that the claim be in sufficient
detail "...which must be personally verified ...." to enable the Court to
determine that the claimant is likely to succeed at trial (Report of the Law
Review Commission for 1984, McKinney's Session Laws of New York at pp
2928-2929). The Commission noted that the linchpin of its proposal was based
upon the innocence of the claimant.
The State argues that the failure of the Claimant to personally verify his
claim is fatal. The attorney for the Claimant states that the language of the
section must be interpreted with reference to the CPLR which permits an attorney
to verify a pleading where the party is not within the jurisdiction. He also
argues that even if the verification were improper, the Court should permit the
Claimant time to correct the imperfection (Scheck Reply, pp 18-20).
A review of the Court of Claims decision on the issue of verification leads the
Court to find that defective verification has been found to be a jurisdictional
defect (see Martin v State of New York, 185 Misc 2d 799; Grande
v State of New York, 160 Misc 2d 383).
The attorney for the Claimant, in his second argument, alludes to two
unreported Court of Claims cases to support the proposition that the Court
should grant the Claimant an opportunity to correct the
In the first case, Vasquez v State
of New York,
(Scheck Reply p 18 [Exhibit "F" annexed to Notice of
Cross-Motion, claim number 83301, filed June 30, 1995]) Judge Blinder held that
a claim brought pursuant to Section 8-b was a unique statutory cause of action,
and that the verification requirement was an integral part of the remedy and
that, accordingly, the general provisions of the CPLR must give way to the Court
of Claims Act (Vasquez v State of New York, supra
at pp 2-3).
Nevertheless, he granted the claimant thirty (30) days to correct the
In the second case, Pejcinovic v State of New York
, (Scheck Reply
[Exhibit "F" annexed to Notice of Cross-Motion, claim number 89358, filed August
the Court ruled that an attorney's
verification for an out-of-state claimant was improper and that no opportunity
to correct the defect would be granted because the claimant, unlike the claimant
in the Vasquez
case, had been specifically made aware of the
Claimant's attorney seeks to obtain the relief granted by Judge Blinder in
Vasquez, and distinguish Judge Mega's decision in Pejcinovic.
He argues that the Court in Pejcinovic denied the relief requested by the
movant, because no corrective action had been taken for over a period of nine
months, whereas here, the corrective action was taken "immediately" (Scheck
Reply, pp 18-19).
In reviewing these unreported cases, the Court agrees with the reasoning of
Judges Blinder and Mega, that the claim must be personally verified and that an
attorney's verification for an out-of-county claimant is fatally defective.
That being said, the only issue remaining is whether the defect can be corrected
under the circumstances of this case – the Court thinks not. The Court
has found the statute of limitations had run before the claim was filed,
therefore, a corrected verification could not replace the defective one.
Accordingly, the "immediate" corrective action
which did not take place until more than
three months after the Answer had been received by the Claimant's attorney, was
too late (Exhibit 5, Letter of November 20, 2002, annexed to Notice of Motion to
Dismiss Affirmative Defenses). As Judge Mega noted in his original decision in
Pejcinovic v State of New York
(Exhibit "F" annexed to Notice of
Cross-Motion): "[w]ith the passage of the statutory period, claimants' cause of
action was irretrievably lost, beyond the power of the Court of Claims to
restore" Pejcinovic v State of New York
at p 4). Here the
delay in filing the claim resulted in the same loss.
The Court will not address the question of whether the Claimant's attorneys
were misled by the Office of the Clerk of the Court of Claims, other than to
note that the Claimant's attorneys are far too experienced to rely on a
telephonic opinion of some unnamed person in the Clerk's office (Exhibit "5"
annexed to Notice of Motion to Dismiss affirmative defense, Letter of November
20, 2002) — not ". . .the Clerk of the Court of Claims. . ."
[emphasis added] (Scheck Reply, p 20).
Accordingly, the Court denies the Motion to Dismiss the affirmative defenses
and grants the Cross-Motion to Dismiss the claim on the grounds stated in this