New York State Court of Claims

New York State Court of Claims

MYERS v. THE STATE OF NEW YORK, #2005-015-012, Claim No. 109325, Motion Nos. M-69665, M-69683


Claim dismissed for lack of jurisdiction and late application denied for insufficient information to determine merit.

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):
M-69665, M-69683
Cross-motion number(s):

Claimant's attorney:
Michael Myers, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 22, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion to dismiss the claim (M-69665) for lack of jurisdiction is granted. Claimant's [cross] motion (M-69683) for late claim relief pursuant to Court of Claims Act § 10 (6) is denied. The unverified claim filed with the Clerk of the Court reveals that claimant seeks to recover damages for: medical malpractice/negligence; loss of personal property while he was incarcerated at three different facilities owned and operated by the New York State Department of Correctional Services (DOCS); alleged retaliation by DOCS officials for reporting a correction sergeant and a correction officer; and the alleged denial of his right to serve a claim upon the Attorney General by certified mail, return receipt requested. This claim was implicated in five earlier motions: M-68544, M-68545, M-68797, M-69072 and M-69135.

The facts supporting the defendant's dismissal motion are not in dispute and are acknowledged in part in the "affirmation"[1] submitted on the claimant's [cross] motion. Those facts in relevant part, are as follows: claimant served an unverified claim upon the Attorney General on May 6, 2004 and filed it with the Clerk of the Court on May 7, 2004. Following the Court of Appeals directive in Lepkowski v State of New York, 1 NY3d 201, the Attorney General elected to treat the unverified claim as a nullity and immediately returned it to claimant with a form letter stating the reason for the rejection. Claimant, failing to comprehend the reason for the claim's return, made a motion (M-68545) for an order declaring the return improper and directing the Attorney General to make a motion seeking dismissal of the allegedly defective (unverified) claim.

The Court by decision and order dated August 27, 2004 denied claimant's motion. Claimant subsequently moved for a default judgment (M-69135) which was denied on procedural rather than substantive grounds. In its decision and order dated December 1, 2004 the Court noted that the Attorney General's action in rejecting the claim and returning it pursuant to CPLR 3022 was not sufficient to fully dispose of the pending filed claim without further affirmative steps such as the instant motion to dismiss. By its motion the defendant now seeks dismissal alleging a lack of jurisdiction in that the original claim was unverified and no claim concerning the same subject matter was subsequently served or re-served upon the Attorney General.

Claimant did not oppose the Attorney General's motion but instead made his own [cross] motion for late claim relief.

The Attorney General supported its motion with the affidavit of Janet Barringer, a senior clerk in the Attorney General's Albany office. Ms. Barringer conducted a search of the office records and related the following results:
a. claimant sent an unverified claim on May 6, 2004, which was rejected on the same date it was received; and

b. other than the unverified claim, at no other time has claimant ever served a Claim in this matter on the Attorney General.

It is well established that the service and filing requirements of the Court of Claims Act are jurisdictional in nature. In Lichtenstein v State of New York, 93 NY2d 911, the Court of Appeals, quoting from its earlier decision in Dreger v New York State Thruway Auth., 81 NY2d 721, 724, stated: "[B]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed."

The defendant has established that the claimant failed to serve a copy of a verified claim upon the Attorney General as required by Court of Claims Act § 11. The original claim assigned Claim No. 109325 was unverified and there is no proof that any later verified claim was served and filed. Accordingly, the unverified claim filed with the Clerk on May 7, 2004 must be dismissed as the claimant has failed to meet the literal requirements of the Court of Claims Act relative to commencement of an action against the State of New York in the Court of Claims (Dreger v New York State Thruway Auth., supra, at 723). Accordingly, the defendant's motion is granted.

As previously noted claimant did not oppose the defendant's dismissal motion but instead moved for late claim relief. Claimant's application for late claim relief was not accompanied by a proposed claim as required by Court of Claims Act § 10 (6). Such a defect has been found to be fatal to a late claim application in several Court of Claims decisions including Grant v State of New York, Ct Cl, September 6, 2000 [Claim No. None, Motion No. M–61919, UID # 2000-001-049[2]], Read P.J., unreported; Larocco v State of New York, Ct Cl, May 24, 2004 [Claim No. None, Motion No. M-68085, UID # 2004-009-33], Midey, J., unreported). In addition, claimant did not submit a sworn statement containing factual allegations relative to the merits of his claim(s) and did not address any of the statutory factors which the Court must consider on a late claim motion pursuant to Court of Claims Act § 10 (6).

Given the lack of factual detail, it is impossible for this Court to discern from the instant application the true nature of the claim, whether there is merit to any underlying claim, whether the claim might be barred by the appropriate Statute of Limitations, whether the State received notice of the underlying events and was thereby afforded an opportunity to investigate the allegations in order to avoid prejudice and whether claimant might have an alternative remedy available.

Claimant's [cross] motion must therefore be denied (see Morrison v State of New York, Ct Cl, May 9, 2002 [Claim Nos. 104475, 104946, Motion Nos. M-64078, M-64257, M-64339, UID # 2002-018-136] Fitzpatrick, J., unreported; Rogers v State of New York, Ct Cl, October 16, 2001 [Claim No. None, Motion, No., M-63626, UID # 2001-028-565] Sise, J., unreported).

April 22, 2005
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

Motion No. M-69665
  1. Notice of motion dated January 12, 2005;
  2. Affirmation of Glenn C. King dated January 12, 2005 with exhibit.

Motion No. M-69683

  1. Notice of motion filed January 20, 2005;
  2. Affirmation of Michael Myers, undated.

[1]The [cross] motion is not properly supported by an affidavit of claimant sworn to before a notary public but rather is supported by a document purportedly made under penalty of perjury. The claimant is not eligible to use an affirmation under New York civil practice which limits such use to professionals identified in CPLR 2106. His affirmation is therefore without legal effect.
[2]Unreported decisions from the Court of Claims are available via the internet at