New York State Court of Claims

New York State Court of Claims

RACZ v. THE STATE OF NEW YORK , #2004-030-584, Claim No. 109495, Motion No. M-68979


Synopsis



Case Information

UID:
2004-030-584
Claimant(s):
ZSOLT RACZ
Claimant short name:
RACZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109495
Motion number(s):
M-68979
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
ZSOLT RACZ, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: MARY B.KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
November 1, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 5 were read and considered on Claimant's motion


for a default judgment brought pursuant to Civil Practice Law and Rules §3215 (a):

1,2 Notice of Motion for Default Judgment; Affidavit in Support of Motion for Default Judgment by Zsolt Racz, Claimant

  1. Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General and attached exhibits
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 3020(d)(2) that,

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, Exhibit 2].

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.

November 1, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims