New York State Court of Claims

New York State Court of Claims

NELSON v. THE STATE OF NEW YORK, #2003-030-527, Claim No. NONE, Motion No. M-66308


Claimant's motion to reargue and/or renew prior determination denying his application to treat Notice of Intention as a claim or allow late claim relief denied. Notice of Intention lacked verification as required by Court of Claims Act § 11(b).

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:
Third-party defendant's attorney:

Signature date:
March 31, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 4 were read on Claimant's motion, brought pursuant to §2221 of the Civil Practice Law and Rules, to reargue this Court's prior Decision and Order denying Claimant's application to treat a Notice of Intention as a claim, or, in the alternative, allow filing of a late claim. [Nelson v State of New York, Claim Number NONE, Motion Number M-64828, Scuccimarra, J., June 4, 2002]:
1,2 Notice of Motion, Affidavit in Support by Edward Nelson, Claimant, dated January 21, 2003

3 Affirmation in Opposition by Saul Aronson, Assistant Attorney General, dated February 7, 2003

4 Filed papers: Nelson v State of New York, Claim No. None, Motion No. M-64828, Scuccimarra, J., June 4, 2002, and underlying papers

After carefully considering the papers presented and the applicable law the motion is disposed of as follows:

"A motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided...(citations omitted). Nor does reargument serve to provide a party an opportunity to advance arguments different from those tendered on the original application." Foley v Roche, 68 AD2d 558, 567-568 (1st Dept 1979); see, §2221(d)(2) Civil Practice Law and Rules. Additionally, such a motion should be brought within thirty (30) days after service of a copy of the order with notice of entry, or in any event prior to the entry of any judgment by the appellate court to which an appeal has been taken. §2221(d)(3) Civil Practice Law and Rules; See, Bray v Gluck, 235 AD2d 72 (3d Dept 1997), lv to app dismissed, 91 NY2d 1002 (1998).

Since 1999, however, an application that seeks to change a prior order or judgment of a court based upon a change in the law is categorized as a motion to renew, for which no statutory time constraints are imposed. See, §2221(e)(2) Civil Practice Law and Rules. Case law, however, has continued the limitation that a motion to renew will not be entertained if the motion is made after judgment was entered, and beyond the time period within which an appeal could be taken to the appellate court. Glicksman v Board of Educ. Cent. School Bd. Of Comsewogue Union Free School District, 278 AD2d 364, 366 (2d Dept 2000).

In the Affirmation filed in opposition to the motion, the Assistant Attorney General has given no indication as to whether the order was ever served on Claimant thus there is no way of determining whether the application is timely. According to the records of the Chief Clerk of the Court of Claims, the Claimant is pursuing an appeal of the prior order and filed notice of same on July 5, 2002. This does not preclude a motion to reargue or renew - as the Assistant Attorney General argues - as long as the appeal has not been determined.

Since Claimant asks for reargument based upon a purported change in controlling decisional law, his motion is actually a motion for renewal and will be treated as such. Claimant argues that Jacobs v State of New York, 193 Misc 2d 413 (Ct Cl 2002), decided after this Court's Decision and Order in Claimant's case, should change the prior determination. After careful consideration, Claimant's motion for renewal is denied. The Court is not convinced that there has been an intervening and controlling change in the law since the prior Decision and Order.

In Jacobs v State of New York, supra, Judge Corbett found that the Defendant was estopped from asserting as a jurisdictional defense that the absence of a notarization on the verification of a timely Notice of Intention did not extend the time within which to file the claim. Judge Corbett distinguished his prior decision in Martin v State of New York, 185 Misc 2d 799 (Ct Cl 2000), wherein he had determined that the failure to verify a notice of intention or a claim constitutes a jurisdictional defect. He described the verification of the Notice of Intention in Jacobs, supra, as defective, as opposed to completely absent. In Jacobs, supra, the verification lacked only a notary's signature, but otherwise contained language attesting to the Claimant's having sworn to the truth of the facts contained therein. While discussing lack of verification - versus defective verification - the Court nonetheless found that the question was moot, given that the asserted causes of action in the claim did not depend upon any extension of time provided by a notice of intention. The discussion, while interesting, was not really pertinent to the issues involved in the case.

Certainly, this Court recognizes that other decisions have tried to carve distinctions between verification requirements in the notice of intention versus a claim. See, e.g., Vogel v State of New York, 187 Misc 2d 186 (Ct Cl 2000); Williams v State of New York, 77 Misc 2d 396 (Ct Cl 1974); But, cf., Carpenter v State of New York, (Ct Cl), Collins, J., March 28, 2002, UID No.2002-015-233 In order to avoid a piecemeal derogation of what appears to be a firm statutory requirement, however, this Court is constrained to follow such views. In the absence of a controlling decision from a higher court, or a legislative amendment to allow attestations made under the penalties of perjury - such as that allowed in federal practice for example [See, e.g., USCA §1746; 18 USCA §1621] - proper verification, as statutorily prescribed, is required to retain jurisdiction in the Court of Claims.

Relevant statutes provide: "...The 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." Court of Claims Act §11(b). There is no qualifying language: it is stated in mandatory terms. As to provisions concerning verification, the Civil Practice Law and Rules provide in pertinent part that "...A verification is a statement under oath that the pleading is true to the knowledge of the deponent, except as to matters alleged on information and belief and that as to those matters he believes it to be true...." §3020(a) Civil Practice Law and Rules.

That the verification provided should be in affidavit form is prescribed by §3021 of the Civil Practice Law and Rules. "When an affidavit is authorized or required it may be sworn to before any officer authorized by law to take the acknowledgment of deeds in this state, unless a particular officer is specified before whom it is to be taken." §12 of the General Construction Law. Individuals authorized to take such acknowledgments within the State of New York are "...(a) a justice of the supreme court; (b) an official examiner of title; (c) an official referee; or (d) a notary public." §298 Real Property Law. The Civil Practice Law and Rules also state that those persons authorized to take acknowledgment of deeds within the state are the individuals authorized to administer oaths. See, §2309(a) Civil Practice Law and Rules.

In this case, Claimant had served a notice of intention upon the Attorney General within ninety (90) days of the date of accrual of the causes of action asserted in his claim - indeed, he appears to have served it within two months with respect to at least two of his claims. He signed the document before five witnesses - none of whom was qualified to administer oaths - and asserted that the Notary Public had not been available for 4 days. Claimant's applications to have the Notice of Intention treated as a claim pursuant to Court of Claims Act §10(8) or, in the alternative, for late claim relief pursuant to Court of Claims Act §10(6), were both denied for the reasons stated in this Court's prior Order and incorporated herein by reference.

Claimant's motion for renewal based upon a change in the law changing this Court's prior determination is in all respects DENIED.

March 31, 2003
White Plains, New York

Judge of the Court of Claims