New York State Court of Claims

New York State Court of Claims

MILBACK v. THE STATE OF NEW YORK, #2004-028-502, Claim No. 107669, Motion Nos. M-66798, CM-67016


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:
Defendant's attorney:
BY: Joel L. MarmelsteinAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 29, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's pre-answer motion to dismiss the
Claim and Claimant's Cross-Motion for permission to late file a claim:

1) Notice of Motion and Supporting Affirmation of Assistant Attorney General Joel L. Marmelstein (Marmelstein Affirmation) filed April 14, 2003 with annexed Exhibits A-B;

2) Notice of Cross-Motion and Affirmation in Support /Opposition of Robert G. Bennett, Esq., (Bennett Affirmation) filed June 26, 2003 with annexed Exhibits A-C;

3) Affidavit in Opposition to Motion and in Support of Cross-Motion of Catherine Milback (Milback Affidavit) filed June 26, 2003, with annexed Exhibits A-B;

4) Affirmation in Response of Assistant Attorney General Joel L. Marmelstein filed August 4, 2003;

Filed Papers: Verified Claim filed April 28, 2003.

The underlying Claim asserts causes of action sounding in negligence arising from injuries sustained by Claimant[1] when a television set fell and struck her upon the head. It is alleged the action accrued on September 3, 2002 at the Jacques Cartier State Park in St. Lawrence County, New York.

Defendant timely moves by pre-answer motion to dismiss the instant Claim asserting Claimant's defective Notice of Intention, timely served on October 4, 2002, did not extend Claimant's time to file her Claim and as such service of same on March 24, 2003 was untimely (Marmelstein Affirmation ¶ 7 & 9). Defendant asserts that the defect in the Notice of Intention, although notarized, is lack of the verification statement (CPLR 3020[a]) (Marmelstein Affirmation ¶ 7). Claimant opposes the application asserting there is no basis for treating the Notice of Intention as a nullity relying on CPLR 3022 and in the alternative cross-moves for permission to late file the Claim.

The requirements set forth in Court of Claims Act §§ 10 and 11 are jurisdictional in nature and, as such, must be strictly construed (see Lichtenstein v State of New York, 93 NY2d 911, 912-913; Graham v Goord, 301 AD2d 882). The Court is not free to temper application of a rule of law, whether done in the exercise of discretion, equity or because there is no prejudice and a harsh result will be avoided (see Martin v State of New York, 185 Misc 2d 799, 804-805, collecting cases).

The Court of Appeals' recent decision in Lepkowski v State of New York, 1 NY3d 201, 2003 WL 22966866, 2003 NY, Slip Op 19676, Dec. 18, 2003, spoke to an issue which had stirred judicial debate within the Court of Claims; to wit, what steps must a Defendant take when confronted with a defective verification. Writing for the Court of Appeals, Judge Susan Phillips Read, former presiding judge of the Court of Claims, instructed that "there is no basis for treating an unverified or defectively verified claim or notice of intention any differently than an unverified or defectively verified complaint is treated under the CPLR in Supreme Court. Section 11(b) therefore embraces CPLR 3022's remedy for lapses in verification." (Lepkowski v State of New York , supra ).

Notwithstanding the Court's sweeping statement, CPLR 3022 addresses only verified pleadings. At the same time, a notice of intention has consistently been held not to be a pleading (see Turner v State of New York, ___AD2d ___, 2003 WL 22888863, 2003 NY Slip Op 23875, Ct Cl, Patti, J., Nov. 12, 2003 [a claimant would be well advised to remember that a notice of intention to file a claim is not a pleading], collecting cases) and is not subject to amendment for that reason (Devine v State of New York, 147 Misc 2d 524, 526; see also Torres v State of New York, 233 AD2d 389 [defective notice of intention does not extend time to file claim]). Taken together this raises a question whether the fit between CPLR 3022 and a Notice of Intention is as snug as the Court of Appeals has stated and whether, as suggested in Vogel v State of New York, 187 Misc 2d 186, the Defendant may preserve an objection regarding a defective or insufficient notice of intention, consistent with Court of Claims Act § 11(c), by a timely pre-answer motion, as here, or by asserting the affirmative defense with particularity (id. at 190). Were this Court to apply the Court of Appeals' guidance from Lepkowski to the instant application, it would appear that Claimant's Notice of Intention would pass muster. However, as the instant motion was sub judice at the time Lepkowski was issued, and given the Defendant has not opposed the cross-motion the Court believes it better to resolve the matter on the late file application and leave the query posed for an application which can fully address the issue.

The Claimant's request for permission to late file her claim, a
s a threshold issue, is properly before the Court as this cross-motion was timely filed within the relevant statute of limitations provided by Article 2 of the CPLR.

It is well-settled that the factors a Court must consider in determining a properly framed CCA 10 (6) motion are whether 1) the delay in filing the claim was excusable, 2) the State had notice of the essential facts constituting the claim, 3) the State had an opportunity to investigate the circumstances underlying the claim, 4) the claim appears to be meritorious, 5) the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State, and 6) there is any other available remedy (see Matter of Gavigan v State of New York, 176 AD2d 1117, 1118; Bay Terrace Coop. Section IV v New York State Employees' Retirement System, Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981)

The Defendant does not oppose this application on the basis of any of the statutory factors and those factors are therefore presumed to weigh in the Claimant's favor (see Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024).

Notwithstanding defendant's concession on the motion, the Court has reviewed the proposed claim. Claimant has succeeded in establishing that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11).

Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting Claimant's motion for permission to file a late claim.

Accordingly, the Claimant's cross-motion for permission to late file a claim is granted and Defendant's motion to dismiss Claim No. 107669 is granted. Claimant is therefore directed to file and serve a claim identical to the proposed Claim and to do so in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a within sixty (60) days after this order is filed.

January 29, 2004
Albany, New York

Judge of the Court of Claims

[1] The Claim of David Milback is derivative and unless otherwise noted all references to Claimant refer to Catherine Milback.