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
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 ). 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,
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
, 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
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.