The Defendant seeks to dismiss the instant claim on several grounds.
Defendant seems to rely upon the assertion that the notice of intention to file
a claim, served on November 2, 1998, was "unverified" and should be treated as a
nullity. Additionally, it contends that the notice of intention (NI) and the
Claim contained differing allegations, and thus some of the causes of action in
the claim are untimely because they were not preserved in the NI.
I will address the issue of verification first. Interestingly, the Defendant
suggests that the NI was not verified. However, my review of the notice of
intention (Defendant's Exhibit A) reveals a verification page, purportedly
signed by the Claimant, albeit without notarization. Claimant did provide a
written "explanation" for the absence of notarization, asserting:
Under the Penal Law Section 210-240 i.e. "Perjury", Undersign states. "No Notary
Public Services was made available to me on (10-27-98). Therefore, this
document is being submitted in abscence [sic] of being notarized. See above
paragraphs numbers 9,10, 11 &12."
Those noted paragraphs of the NI recite Claimant's alleged unsuccessful
attempts to obtain notary service. Regardless, at a minimum, the NI might
suffer from a defective verification, but not the absence of a verification
(see Jacobs v State of New York, 193 Misc 2d 413). Defendant, in
its motion papers, fails to even address the appended verification, let alone
the aspects under which it might be deemed to be defective. I note
parenthetically here that the eighth affirm-ative defense in the answer does
assert that the claim was not properly verified, but it makes no mention
whatsoever of the verification of the NI (see Vogel v State of New
York,187 Misc 2d 186).
This entire discussion is somewhat academic, however, as Defendant fails to
address the impact of the holding of the Court of Appeals in Lepkowski v
State of New York (1 NY3d 201, 210):
Pursuant to CPLR 3022, "when a pleading is required to be verified, the
recipient of an unverified or defectively verified pleading may treat it as a
nullity provided that the recipient 'with due diligence' returns the [pleading]
with notification of the reason(s) for deeming the verification defective"
(Matter of Miller v Board of Assessors, 91 NY2d 82, 86 ).... A
defendant who does not notify the adverse party's attorney with due diligence
waives any objection to an absent or defective verification....
[T]here is no basis for treating an unverified or defectively verified claim or
notice of intention any differently than an unverified or defectively verified
complaint is treated under the CPLR in Supreme Court. Section 11(b) therefore
embraces CPLR 3022's remedy for lapses in verification.
The Defendant does not assert that it diligently treated the NI or the claim as
a nullity by returning it to the Claimant. Accordingly, any grounds for
dismissal based upon an absent or defective verification of the NI or the claim
is rejected, and that part of Defendant's motion is denied.
More significant, however, are the alleged differences in allegations between
the NI and the claim. The claim, served on August 30, 2000 (Exhibit C to the
motion papers) and filed on September 12, 2000, alleges in paragraph 5 that it
is being filed within two years of its accrual, reciting accrual dates of August
14 and 16, 1998; September 15 and 20, 1998; October 7, 12, 27 and 29, 1998. The
claim addresses the following incidents: (1) in paragraphs 6-10: the August 14,
1998 incident at Wende on the top bunk when Claimant's glasses allegedly were
damaged; (2) in paragraphs 11 and 12: a "smoke inhalation" incident at Wende,
dated September 20, 1998, but see paragraph 27, where the date of the "toxic
smoke" fire is August 1998; and (3) in paragraphs 13 - 16: the October 7, 1998
incident in which his right hand little finger was injured on an allegedly
defective door latch.
First, as to the to the allegations raised in the NI regarding the August 4
and 9, 1998 incidents with a right thumb injury at Franklin Correctional
Facility relating to an allegedly unrepaired speed buffing machine, they are not
alleged in the claim. While Claimant seemingly incorporates these incidents as
being part of the claim merely because they were asserted in the NI, the failure
to allege the same in the claim presumes the waiver of such allegations, and
therefore they are not before me in any pleading (claim) filed with the Court,
and as such they are not part of the instant motion. Any attempts to present
proof of these incidents will be addressed at trial. There is reference to a
confiscated photograph(s), but it not clear to me that this is the subject of a
claim for lost property, and there is no discussion about any administrative
remedies having been sought or exhausted (Court of Claims Act §10).
Consideration of that issue will abide the trial.
The incidents occurring on October 7, 1998 and August 14, 1998 were raised and
preserved in the NI, and both were reiterated in the claim. The NI did raise an
undated incident at Wende wherein Claimant was compelled to remain in his cell
and was allegedly exposed to and inhaled smoke from a fire in a nearby cell,
after which he alleges that a nurse "did not appropriate service [him] for the
smoke inhaling negative effects of health conditions." The claim specified the
date of such incident as being September 20, 1998 or August 1998. The fact
that the cause of action relating to inhalation of smoke at Wende is undated in
the NI and dated in the Claim, given my discussion below regarding the failure
to preserve a defense particularizing untimeliness, does not lead to dismissal
on timeliness and jurisdictional grounds.
Claimant's opposing papers display some confusion, as he misunderstands the
requirements of Sections 10 and 11 of the Court of Claims Act. For negligence
claims, when a claimant has served an NI, he must then serve and file his claim
within two years "after the accrual of such claim" (Court of Claims Act
§10). Claimant's opposing papers reflect his belief that the two-year
period is to be measured from the date of the service of the NI, while the
statute clearly measures the same from the date of accrual (Section 11(a) and
However, the State's motion papers also neglect to address a statutory
requirement with respect to assertions of untimely service or filing of the
claim, to wit, Section 11(c) of the Court of Claims Act, which requires that
such objection or defense be raised in the answer, with particularity.
Thus, to the extent that Defendant seeks dismissal on the ground that certain
allegations made in the claim were untimely, I must first determine whether the
defense of untimeliness was raised with particularity in the answer. Here I
find that it was not. The fifth affirmative defense asserts that Claimant
failed to timely serve an NI or claim within ninety (90) days of the "alleged
incident" and then provides the dates of service. This fails the particularity
test in part because it fails to specify which of the several incidents alleged
it alludes to. This failing is exacerbated by the sixth affirmative defense,
which alleges the failure to timely file a claim "within ninety (90) days of the
alleged incident of August 14, 1998", and then alleges that the "[NI] and the
Claim [were] filed on November 2, 1998 [sic, the NI was served on that day and
is not filed at all, and the claim was filed on September 12, 2000], more than
ninety (90) days after the alleged incident." At the very least, November 2,
1998 is less than 90 days from August 14, 1998, and the confusing language of
this affirmative defense belies particularity.
Thus, even though the claim was served on August 30, 2000 and filed with the
Clerk on September 12, 2000, both more than two years after the accrual of any
of the causes of actions earlier in August 1998, I find that any untimeliness
arguments were not preserved with particularity in the answer, thereby
contravening Court of Claims Act §11(c). I am therefore precluded from
dismissing those allegations due to their untimeliness.
The Defendant's motion to dismiss the claim is denied in accordance with the
above. This matter will proceed to trial as scheduled on September 15,