4,5 Filed Papers: Claim, Answer
After carefully reviewing the papers submitted and the applicable law the
motion is disposed of as follows:
Zsolt Racz, the Claimant herein, alleges in Claim Number 109495 that
Defendant's agents negligently or intentionally lost his property while he was
in the custody of the New York State Department of Correctional Services
(hereafter DOCS). According to the Affidavit in Support of the present motion,
the Claim was served upon the Office of the Attorney General by certified mail,
return receipt requested, on June 17, 2004. It was filed in this Court on the
same date. An Answer was served on or about July 7, 2004 and was filed in this
Court on July 9, 2004.
Relying on Civil Practice Law and Rules §3022, it appears that on or about
July 11, 2004 the Claimant returned the Verified Answer to the Attorney General,
indicating that he intended to treat it ". . . as a nullity because it is
unsigned, defectively verified and [he was] . . . therefor rejecting and
returning it to . . . [the Attorney General] with due diligence." [Affirmation
in Opposition, Exhibit 2]. The present motion is premised on the failure to
correct this allegedly defective pleading, and serve a proper pleading within
forty (40) days of service of the Claim. The requirement that a responsive
pleading be served within forty (40) days of receipt of the Claim is set forth
at 22 NYCRR §206.7(a).
Court of Claims Act § 11(b) requires that both a claim and a notice of
intention to file a claim " . . . be verified in the same manner as a complaint
in an action in the supreme court."
"Verification" is defined in the Civil Practice Law and Rules as ". . . a
statement under oath that the pleading is true to the knowledge of the deponent,
except as to matters alleged on information and belief, and that as to those
matters he believes it to be true . . . " Civil Practice Law and Rules §
3020 (a). While there is no statutory requirement set forth in the Court of
Claims Act, or regulatory requirement that the responsive pleading be verified,
where a pleading - such as a claim - has been verified, each subsequent pleading
must be verified as well. [Id]. Further, ". . . [t]he verification of a
pleading shall be made by the affidavit of a party . . . except . . . if the
party is the state . . . the verification may be made by any person acquainted
with the facts" Civil Practice Law and Rules §3020(d)(2). Only certain
individuals - including attorneys - may affirm the truth of statements in lieu
of swearing to their truth before one empowered to take oaths [see Civil
Practice Law and Rules § 2106 ].
The Court has reviewed the Claim served herein, and finds that it contains an
appropriate verification. The Answer contains the following verification:
"I, MARY B. KAVANEY, an attorney admitted to practice in the Courts of this
State, being an Assistant Attorney General on the staff of ELIOT SPITZER,
Attorney General of the State of New York, affirm pursuant to CPLR 2106 and CPLR
I am acquainted with the facts of this claim, and I have read the foregoing
Verified Answer and know its contents. The matter therein are stated upon
information and belief, and I believe them to be true. The grounds for my
belief are documents, records, correspondence and other material maintained in
the file of this action in your deponent's office." [Affirmation in Opposition,
The original Answer - filed with the Clerk's office - is signed by the
Assistant Attorney General.
The verification used by Defendant in its Answer is sufficient to comply with
the statutory and regulatory requirements for a verified pleading. Rejection of
the Verified Answer was improper, and thus there has been no default in
answering on the part of the Defendant.
Accordingly, Claimant's motion number M-68979 is in all respects denied.