New York State Court of Claims

New York State Court of Claims

V. THE STATE OF NEW YORK, #2004-013-006, Claim No. 104290, Motion No. M-67225


Synopsis


Case Information

UID:
2004-013-006
Claimant(s):
JOEL VIZZINI
Claimant short name:

Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104290
Motion number(s):
M-67225
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
BARTON, BARTON & PLOTKIN, LLPBY: THOMAS P. GIUFFRA, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 14, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


On December 18, 2003, the following papers were read on motion by Defendant for dismissal of the claim:

Notice of Motion, Affirmation and Exhibit Annexed

Opposing Affirmation and Exhibit Annexed

Reply Affirmation

Letter from Claimant dated January 5, 2004

Filed Papers: Claim

Upon the foregoing papers, this motion is denied.

The instant motion seeks dismissal of the claim on the ground that the claim herein was not verified. The Court of Appeals, in an opinion dated December 18, 2003 in Lepkowski v State of New York (_____ NY2d _____, 2003 NY Slip Opinion 19676, Dec. 18, 2003), held, inter alia, that §11(b) of the Court of Claims Act "embraces CPLR 3022's remedy for lapses in verification." As the Court of Appeals observed, pursuant to CPLR 3022, "[a] defendant who does not notify the adverse party's attorney with due diligence waives any objection to an absent or defective verification."

Here the Defendant waived any such objection, as the question was not raised until the filing of the instant motion on July 30, 2003, more than two years after the service and filing of the claim.

The motion is denied.


January 14, 2004
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims