New York State Court of Claims

New York State Court of Claims

MURRAY v. THE STATE OF NEW YORK, #2004-031-017, Claim No. 108304, Motion No. M-67679


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:
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 4, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 4, were read on motion by Defendant for an order dismissing the claim:
1. Notice of Motion, filed November 3, 2003;
2. Affirmation of Heather R. Rubinstein, Esq., dated October 30, 2003 with attached exhibits;
3. Claimant's Affidavit, sworn to November 17, 2003, with attached exhibit;
4. Filed Papers: Claim. This is Defendant's motion, filed in lieu of an Answer, seeking dismissal of the claim. The claim, filed on September 19, 2003, alleges that on February 19, 2003, Claimant discovered that certain items of his personal property, which had been entrusted to Defendant's care, were lost or damaged. The claim was served upon Defendant on September 22, 2003. Prior to this, on May 16, 2003, Claimant served Defendant with a notice of intention to file a claim which appeared to identify the cause of action asserted in the claim, as well as two others, which were not.

In support of its motion, Defendant asserts that both the notice of intention and the claim are defective, as neither document was properly verified as required by Court of Claims Act § 11(b). I find this argument to be without merit. First, relating to the notice of intention, Claimant's cause of action relates to Defendant's negligent care of Claimant's personal property. As such, the provisions of CCA § 10(9) permit the claim to be filed within 120 days of Claimant's exhausting his administrative remedies. As the claim itself alleges that Claimant's administrative appeal relating to this claim was denied on June 4, 2003, the claim filed on September 19, 2003, was timely and any defects in the notice of intention are irrelevant.

Furthermore, with respect to the alleged failure to properly verify the claim, Claimant argues that the claim was properly verified and has attached, as an exhibit to his opposition papers, a copy of his verification. This document indicates that the claim was, in fact, verified on September 16, 2003. I note also that the claim filed with the Clerk indicates that it was verified on September 16, 2003. It is unclear how the verification page was lost or omitted from the copy of the claim served on Defendant, but it is clear that the claim was properly verified.

In any event, the recent Court of Appeals decision in Lepkowski v State of New York (1 NY3d 201), clearly overruled the cases relied on by Defendant in support of dismissal on this basis. Pursuant to Lepkowski, Defendant was required to reject the claim and notify Claimant that it is treating the claim as a nullity due to the allegedly defective verification. There is no indication in the papers before me that Defendant provided Claimant with such notification. For this reason, too, the motion to dismiss based upon a lack of verification must be denied.

I also find that Defendant's allegation that the claim fails to set forth a cause of action with sufficient particularity to be without merit. I find that Claimant has adequately pled a cause of action for the value of the property that he discovered was lost or damaged on February 19, 2003.

Finally, Defendant argues, apparently out of an abundance of caution, that the two causes of action mentioned in the notice of intention, but not set forth in the claim should be dismissed because Claimant did not plead them with sufficient particularity. I find that these causes of action, though alluded to in the notice of intention, were not asserted in the claim. There exists, therefore, nothing to dismiss.

For the reasons set forth above, Defendant's motion for dismissal of the claim is denied.

March 4, 2004
Rochester, New York

Judge of the Court of Claims