On July 16, 2003, the following papers were read on motion by Claimant for an
order striking the affirmative defense alleging an absence of a verification of
the claim, or, in the alternative, for permission to file a late claim; and on
cross-motion by Defendant for an order dismissing the claim:
Claimant's Affidavit in Opposition to the Cross-Motion
Defendant's Reply Affirmation
Filed Papers: Claim; Answer
Initially, Claimant moves to strike the third affirmative defense of the
answer, or, in the alternative, permission to file a late claim. The third
affirmative defense is based entirely upon the purported absence of a
verification of the claim.
The Court of Appeals, in a recent opinion in Lepkowski v State of New
York (1 NY3d 201) has held, inter alia, that Court of Claims Act
Section 11(b) "therefore 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, inasmuch as the Defendant merely raised the issue as an affirmative
defense, but did not follow the procedures specified in CPLR 3022, the defense
or objection with respect to verification was waived. Accordingly, the motion
is granted, and the third affirmative defense is stricken, with the alternative
relief of permission to file a late claim being denied as moot.
In response to the motion, Defendant has made a cross-motion seeking to dismiss
the claim on two grounds. The first ground relies upon the verification issue
resolved above. The second ground is more problematical, relying upon the
holding of the Court of Appeals in Riley v County of Broome (95 NY2d 455
). The Defendant supplies the affidavit of Michael F. Witkowski, Jr., the
driver of the snowplow in question, who asserts that he was in the course of
engaging in snow removal operations but had raised the plow and wings as he was
preparing to enter into the intersection to make a left-hand turn. Claimant
supplies some opposing affidavits making assertions about precisely what
activities/work the snowplow was engaged in at the time of the accident.
Claimant characterizes the affidavit of Mr. Witkowski as being self-serving,
and while I do think that Claimant has an uphill battle to overcome the holding
, I also agree that he should have the
opportunity to depose Mr. Witkowski before I make any decision. Accordingly,
the State's motion to dismiss is denied at this time, without prejudice to its
renewal, or to a motion for summary judgment. It appears to me that the issue
will be a determination of whether the snowplow was "actually engaged in work on
a highway" under Vehicle and Traffic Law §1103(b), entitling it to be
subject to the same recklessness standard applicable to emergency vehicles. I
note in passing that the determination of whether a vehicle was actually
engaging in work arose in an earlier claim before me (Quackenbush v State of
, Ct Cl, #2000-013-022 [Claim No. 95363 - Motion No. M-61609], Sept.
in a liability decision rendered
just a few months prior to the Riley
decision at the Court of Appeals.
After entering a judgment in damages in Claimant's favor, long after the
decision, the matter was settled without any appeal having been
taken by the Defendant, despite the potential contrariness of
All that having been said, the State's cross-motion to dismiss is denied in all
respects. A conference to amend the current scheduling order will be calendared
under separate cover.