New York State Court of Claims

New York State Court of Claims

CARTER v. THE STATE OF NEW YORK, #2004-031-164, Claim No. 109580, Motion Nos. M-69071, CM-69238


Defendant properly rejected claim as unverified. Claimant failed to correct defect within time granted by Court in previous motion. Defendant's motion for dismissal of the claim granted

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: TIMOTHY P. MULVEY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 7, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on motion by Claimant to compel Defendant to answer his amended claim, and on motion by Defendant for dismissal of the claim:
  1. Claimant's "Motion to Compel" (M-69071), filed September 2, 2004;
2) Correspondence from Claimant, dated September 26, 2004;
3) Defendant's Notice of Cross-Motion (CM-69238), filed October 14, 2004;
  1. Affirmation of Timothy P. Mulvey, Esq., dated October 7, 2004, with attached exhibits;
  2. Filed Documents: Amended Claim. Claimant has filed a motion (M-69071) in which he asks the Court to direct Defendant to answer his Amended Claim. Subsequently, following service and filing of Defendant's answer, Claimant, in a letter dated September 26, 2004, withdrew motion M-69071. However, Defendant has filed a cross-motion seeking dismissal of the claim, which the Court must now address.
In a decision and order filed on May 21, 2004, I granted Claimant permission to file a late claim relating to injuries he sustained on April 11, 2003, when he was allegedly assaulted by correction officers at Auburn Correctional Facility. In that Decision and Order, Claimant was directed to file and serve his claim, "in conformance with the requirements of CCA §§ 10, 11 and 11-a within sixty (60) days after this order is filed." Claimant served a claim upon Defendant on June 17, 2004. That claim was unverified and, as such, was rejected and returned to Claimant with a letter (Defendant's ex. C) indicating that it was rejected and the nature of the defect. For some reason, an identical unverified claim was served upon Defendant the next day June 18, 2004 (Defendant's ex. D). This claim, too, was rejected by Defendant on the day it was received and Claimant was notified by letter (Defendant's ex. E) as to why it had been rejected. Thereafter, on August 2, 2004, Claimant served Defendant with his verified "Amended Complaint Claim of Assault and Battery." August 2, 2004 was the 73rd day after filing of the Court's May 21, 2004 Decision and Order.
With its cross-motion, Defendant seeks dismissal of the claim because Claimant failed to serve it upon Defendant within sixty days of the May 21, 2004 filing date of my previous decision and order. Claimant apparently concedes that the service of his "Amended Complaint" on August 2, 2004 was not within the time period granted by the Court for service and filing of his claim. He argues, however, that Defendant's letters rejecting his claim were not specific enough to give him proper notice of the reason for rejection. Therefore, according to Claimant, Defendant's rejection of the claim was invalid.

However, Defendant's cover letter rejecting the claim clearly states "Pursuant to CPLR Rule 3022, the defendant is electing to treat the enclosed claim received on today's date as a nullity and is hereby rejecting and returning it to you because: X it is unverified." I find that Defendant's rejection of the claim was proper, timely and in compliance with CPLR 3022. The initial service of the unverified claim was, therefore, a nullity (Lepkowski v State of New York, 1 NY3d 201).

As Claimant's service of the unverified claim was a nullity, his subsequent service of the Amended Claim on August 2, 2004 was untimely and in contravention of the Court's Decision and Order filed on May 21, 2004. Claimant is, therefore, in default for failing to comply with the time limitations set forth in that Decision and Order. In such an instance, the provisions of CPLR 5015 require Claimant to affirmatively demonstrate: 1) that his failure to comply with the order was excusable; and 2) merit to his underlying cause of action (see e.g. Paul v State of New York, Ct Cl, November 8, 2001 [Claim No. 102350, Motion No. M-63811], Read, P. J., UID #2001-001-079). I find that Claimant has failed to demonstrate either.

Accordingly, for the reasons stated above, it is hereby

ORDERED, that Defendant's motion for dismissal of the claim is granted and the claim is dismissed in its entirety. The Clerk of the Court is directed to close the file.

December 7, 2004
Rochester, New York

Judge of the Court of Claims