New York State Court of Claims

New York State Court of Claims

EDWARDS v. THE STATE OF NEW YORK, #2003-032-084, Claim No. 107379, Motion Nos. M-66911, CM-66960


Claim is dismissed upon a finding that the verification submitted by claimant in opposition to defendant cross motion to dismiss did not accompany the notice of intention that was served on the Attorney General.

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:
Edward Edwards, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Dennis M. Acton, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
September 11, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This claim, which was filed on February 24, 2003, alleges that officials at Bare Hill Correctional Facility failed to carry out their duty to enforce the no smoking policy within the facility, causing claimant to suffer a number of physical ailments as a result of second-hand smoke. Claimant alleges that the cause of action arose on November 18, 2002[1] and that he served a notice of intention to file a claim on the Attorney General on December 22, 2002.

Claimant has now moved for summary judgment in his favor on the ground that defendant's answer "contains a consistent denial, or lack of knowledge as to the workings of the Department of Correctional Services policies and procedures" (Edwards affidavit, ¶ 4). Because defendant has offered no proof against the allegations contained in the claim (id, ¶5), claimant argues, he is entitled to judgment as a matter of law. Claimant's interpretation of the effect of a general denial is incorrect. General denials relate to matters on which the party making the allegations, not the party denying them, has the burden of proof (Northway Engineering, Inc. v Felix Industries, Inc., 77 NY2d 332, 336 [1991]). Consequently, "[w]hen an allegation is denied, the allegation must be proved by the party pleading it" (Siegel, Practice Commentary, McKinney's Consol Laws of NY, Book 7B, CPLR 3018, C3018:2). In other words, claimant still has the burden of proving the elements of his cause of action by credible and appropriate evidence. Defendant is not required to disprove those allegations, either in its responsive pleading or at trial. Claimant's motion for summary judgment must be denied.

Defendant has cross-moved for an order of dismissal on the ground that the notice of intention served on the Attorney General was not verified, as is required by section 11(b) of the Court of Claims Act. The notice of intention that was received by the Office of the Attorney General contains no verification: Exhibit B of the affirmation of the Assistant Attorney General contains the one-page unverified notice of intention and a one-page affidavit of service relating to the notice of intention. The affidavit of service was notarized on December 22, 2002 by Michael W. Mader, Notary Public. In opposition to the cross-motion, however, claimant has submitted, in addition to other documents, a one page verification, in proper form, which refers to "the adjoining NOTICE OF INTENTION TO FILE CLAIM (dated December 22, 2002)" and which was also appears to have been notarized by Michael W. Mader on December 22, 2002.

The question that must be answered is whether this verification actually accompanied the notice of intention that was served on the State. The Court concludes that it was not. As noted above, the Assistant Attorney General attached only two documents to the affirmation in support of his cross-motion. These were the notice of intention and the affidavit of service, and defense counsel has stated that "[c]laimant's unverified notice of intention (attached as Exhibit "B") was served on 12/27/02" (Acton affirmation, ¶ 4).

In claimant's affidavit in opposition to the cross-motion, he states:

Enclosed please find a copy of the verification and affidavit of service (proof of service) pertaining to claimant's notice of intention to file claim which was mailed certified return receipt to the Attorney General's office on 12/22/02. Please note; that the certified mail return receipt was not signed by the Attorney General's office. The verification and notice to file claim was (sic) returned to me with the return receipt, see (certified mail return receipt) annexed hereto in.

(Edwards affidavit in opposition, 1st ¶ [capitalization corrected]).

This statement simply cannot be credited. There would be no reason or opportunity for either the delivery person of the United States Post Office or the employee receiving mail for the Office of the Attorney General to remove from the envelope some but not all of the pages contained therein. Nor is there any explanation for how the document or documents would have been returned to claimant. Certainly, there is no indication that this "missing" verification was in some fashion attached to the green card that was returned to claimant (id, attachment). In addition, claimant states his "notice [of intention] to file claim" was also removed and returned to him, but if that were true, it could not also have been received by the State, as it clearly was. Finally, and in the Court's view conclusively, the claim that was filed with the Court and the copy of the claim that was served on the Attorney General (Acton affirmation, Exhibit A) both contain 1) a copy of the notice of intention and 2) a copy of the affidavit of service relating to that document. Neither claim contains a copy of the verification, however. The Court can only conclude that claimant forgot to include the verification when he mailed the notice of intention and its related affidavit of service.[2]

Although the reason for such an inflexible interpretation of the statute's requirements can be questioned, at least in the Third Department the controlling law is that a claimant's failure to verify either his notice of intention or his claim is a fatal jurisdictional defect in Court of Claims practice (Price v State of New York, 2003 WL 21669922, 2003 N.Y. Slip Op. 51086(U) [Ct Cl]) and cases cited therein).

Claimant's motion is denied. Defendant's cross motion is granted, and Claim No. 107379 is dismissed.

September 11, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion for summary judgment in his favor and on defendant's cross motion for an order of dismissal:
1. Notice of Motion and Supporting Affidavit of Edward Edwards, pro se
2. Notice of Cross Motion and Supporting Affirmation of Dennis M. Acton, Esq., AAG

3. Affidavit in Opposition of Edward Edwards, pro se

Filed papers: Claim; Answer

[1] Claimant does not explain the significance of this date, and one of the attachments to the claim is a letter, dated September 5, 2002 and sent from Bare Hill Correctional Facility, written to the Commissioner of the Department of Correctional Services (DOCS) setting forth the same complaints.
[2] Alternatively, it is possible that the verification was produced sometime later. It is an unusual form for a verification, taking up an entire page, and is entirely different from the more typical partial-page verification that is part of the claim. In addition, the lower part of this unusual verification, which contains claimant's signature and the jurat signed by the notary, appears identical in all respects to the signature and notarization portion of the December 22, 2002 affidavit of service. The Court cannot discern even one penstroke that distinguishes between each pair of signatures. In contrast, the signatures of both claimant and Michael W. Mader that are contained on the claim's verification, while similar, are visibly different in several respects. The signatures of these same individuals on the February 17, 2003 affidavit of service are again slightly different from any of the other signatures.