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