New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2004-034-522, Claim No. 106401, Motion No. M-67411


Synopsis


Case Information

UID:
2004-034-522
Claimant(s):
JULIO PEREZ
Claimant short name:
PEREZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106401
Motion number(s):
M-67411
Cross-motion number(s):

Judge:
MICHAEL E. HUDSON
Claimant's attorney:
JULIO PEREZ, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 5, 2004
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has moved for dismissal of the Claim pursuant to CPLR 3212. The Court hereby denies the motion.

The Court has considered the following papers in connection with this motion:
1. Claim, "verified" July 18, 2002, filed July 22, 2002;
2. Answer, affirmed August 15, 2002, filed August 19, 2002;
3. Notice of Motion, dated September 18, 2003, filed September 22, 2003;

4. Affirmation of James L. Gelormini, dated September 18, 2003, with attached exhibit;

5. Response to Notice of Motion, dated October 29, 2003, filed November 13, 2003, with attached exhibits.

6. Supplemental Affirmation of James L. Gelormini, dated November 17, 2003, filed November 19, 2003, with attached exhibits.

Claimant, while an inmate at Attica Correctional Facility, sought to recover for injuries allegedly sustained as the result of an assault by correction officers at the facility on May 4, 2002. He filed this Claim on July 22, 2002, alleging assault and battery. Claimant signed his name to a page entitled "Verification," which included the language referenced in CPLR 3020 (a) for verification. However, he did not have his signature notarized. Defendant has filed an Answer with nine affirmative defenses, including an improper or missing verification. Subsequently, Defendant filed the motion currently before this Court, seeking to dismiss the Claim for failure to properly verify the Claim.

The Court will now deny the motion. While this motion was pending, the Court of Appeals issued its decision in Lepkowski v State of New York, 1 NY3d 201, and determined inter alia that the failure to comply with the verification provisions set forth within the Court of Claims Act § 11 (b) is not jurisdictional in nature. For that reason, dismissal for lack of subject matter jurisdiction is not warranted herein. Defendant's sole remedy for the lack of proper verification was to deem the Claim a nullity, and return that pleading with due diligence, together with a notification of the reasons therefore, all set forth within CPLR 3022 (Lepkowski v State of New York, 1 NY3d, at 209-210). Having failed to promptly reject the improperly verified Claim, Defendant cannot now pursue a remedy for Claimant's noncompliance with section 11 (b).

Based upon the above, it is

ORDERED, that Defendant's motion is denied.

April 5, 2004
Buffalo, New York

HON. MICHAEL E. HUDSON
Judge of the Court of Claims