New York State Court of Claims

New York State Court of Claims

MYERS v. THE STATE OF NEW YORK, #2004-015-444, Claim No. 109325, Motion Nos. M-69072, M-69135


Synopsis


Claimant's motion seeking an order directing Court Clerk to serve a copy of the claim upon the Attorney General is denied as is claimant's inadequately supported motion for a default judgment based upon the defendant's failure to serve an answer to a claim it treated as a nullity pursuant to CPLR 3022.

Case Information

UID:
2004-015-444
Claimant(s):
MICHAEL MYERS
Claimant short name:
MYERS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109325
Motion number(s):
M-69072, M-69135
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Michael Myers, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 1, 2004
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant's motion (M-69072) for an order directing the Clerk of the Court to serve a copy of claimant's previously filed motion papers (M-68797) upon the Attorney General is denied as is claimant's separate motion (M-69135) seeking a default judgment against the State. By an unverified claim filed May 7, 2004 claimant seeks to recover damages for medical negligence/malpractice and the alleged loss of personal property in the custody of the Department of Correctional Services (DOCS). This claim was the subject of a prior motion in which claimant unsuccessfully sought the assignment of an attorney (M-68544), equitable relief in the form of an order directing the Attorney General to make a motion to dismiss the claim (M-68545) and an order compelling responses to unspecified discovery demands (M-68797).

The first of the instant motions (M-69072) seeks an order directing the Clerk of the Court of Claims to "serve copies of all my pending motions and discoveries [sic] requests". This motion is denied.

In its decision and order dated August 27, 2004 the Court, inter alia, found that it was without jurisdiction to compel the Attorney General to make a motion to dismiss the instant claim. Therein the Court specifically noted that the claimant had not sought a default judgment for the defendant's failure to answer the claim. Such a motion is now before the Court.

Prior to Lepkowski v State of New York, (1 NY3d 201) the judges of this Court were divided on the issue of whether the absence of a verification was a waivable, non-jurisdictional defect or a non-waivable jurisdictional defense which could be raised at any time by the defendant and even by the Court sua sponte (see Matter of Fry v Village of Tarrytown, 89 NY2d 714). Subsequent to Lepkowski the Attorney General began to treat unverified claims as nullities returning the claim to the would be claimants and providing notice with due diligence of the State's election to so treat the unverified pleadings as required in Rule 3022 of the CPLR. Such a scenario occurred in the instant case.

It appears, however, that upon exercising its election the Attorney General has chosen to ignore the unverified claim rather than to move for its dismissal or to serve an answer in which the claim's lack of verification is raised as a defense. While this choice on the part of the Attorney General has acted to preserve the verification defense it does not constitute a disposition of the pending unverified claim. A defense, even one which has been preserved by timely and appropriate action by the defendant pursuant to CPLR 3022, is a shield and not a sword which strikes the pleading. More definitive action on the part of the defendant is required either through service of an answer asserting the defense or a pre-answer motion to dismiss the unverified claim.

Notwithstanding the above, claimant's motion for a default judgment must be denied in that the claimant has failed to provide the proof required by CPLR 3215(f) which provides that an application for a default judgment must be supported by an "affidavit made by the party of the facts constituting the claim, the default and the amount due". The "affirmation" in support of the motion submitted by claimant was not subscribed and sworn to before a notary public or other person authorized to administer oaths and does not relate the facts constituting the claim. That document is therefore insufficient for purposes of the instant motion and the unverified claim may not act as a substitute for a proper affidavit. As a result, the claimant's motion for a default judgment is denied.

December 1, 2004
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Undated notice of motion (M-69072) filed on August 31, 2004;
  2. Undated "affirmation" of Michael Myers received by the Clerk on August 31, 2004;
  3. Undated notice of motion (M-69135) filed on September 15, 2004;
  4. Undated "affirmation" of Michael Myers received by the Clerk on September 15, 2004;
  5. Affirmation of Glenn C. King dated September 29, 2004.