New York State Court of Claims

New York State Court of Claims

FLETCHER v. STATE OF NEW YORK, #2005-018-475, Claim No. 108265, Motion No. M-70160


Synopsis


Defendant's motion to dismiss is GRANTED.

Case Information

UID:
2005-018-475
Claimant(s):
DEREK FLETCHER The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
FLETCHER
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108265
Motion number(s):
M-70160
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
DEREK FLETCHERPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: ED J. THOMPSON, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 18, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant brings a motion to dismiss the claim for lack of jurisdiction. Claimant responded to the motion by letter dated June 1, 2005.

Claimant filed a claim with the Clerk of the Court of Claims on September 11, 2003, seeking damages for loss of personal property while an inmate at Cape Vincent Correctional Facility. Claimant exhausted his administrative remedies pursuant to Court of Claims Act

§ 10(9) on August 27, 2003, and had 120 days from the date of receipt of that final administrative determination to file and serve a claim in accordance with Court of Claims Act §§ 10 and 11. There is no indication when Claimant received the final administrative determination, however, since the notary stamp on his claim is dated September 8, 2003, it is clear that he had received the determination by that date.

Claimant served Defendant with a copy of the filed claim by certified mail, return receipt requested on December 22, 2003. Defendant, by letter dated December 22, 2003, rejected the claim served that date, electing to treat it as a nullity because the claim was not signed. In fact, the claim was not separately signed by the Claimant nor was the verification form signed. Claimant sent the Attorney General a new claim by regular mail on January 12, 2004, which was signed, however, the verification was still unsigned. Defendant rejected this claim, treating it as a nullity by letter dated January 13, 2004. Claimant, thereafter on January 26, 2004, sent Defendant the same claim signed and properly verified by regular mail. However, Claimant never filed this verified claim with the Clerk of the Court.

The claim must be dismissed. Court of Claims Act § 11(a)(i) requires that the claim be filed with the Clerk of the Court and served upon the Attorney General by certified mail, return receipt requested or by personal service. The claim itself must, in addition to the other requirements, be properly verified "in the same manner as a complaint in an action in supreme court." (Court of Claims Act § 11[b]). The requirements of §§ 10 and 11 of the Court of Claims Act are jurisdictional prerequisites to maintaining an action in the Court of Claims[1] and the failure to comply results in the Court lacking the jurisdiction to hear the claim. Although Claimant timely served[2] Defendant with a verified claim, he failed to timely file a verified claim. The failure to timely file a verified claim renders the claim jurisdictionally defective which cannot be saved by the ameliorative doctrine of substantial compliance (compare Byrne v State of New York, 104 AD2d 782, app denied 64 NY2d 607), nor do the provisions of CPLR 3026 apply. CPLR 3026 directs that defects in pleadings shall be ignored if a substantial right of a party is not prejudiced. The State, however, relinquished its sovereign immunity and consented to be sued and subject to liability determined in accordance with the same rules of law applicable to Supreme Court actions against individuals or corporations "provided the claimant complies with the limitations of this article" (Court of Claims Act §8). Thus, to ignore the failure to timely file a verified pleading with the Clerk of the Court would subject the State to suit despite the failure to comply with the requirements for commencing an action in the Court of Claims. The Court does not have the authority to ignore the defect (see Newman v State of New York, Ct Cl, Hard, J. dated September 21, 2004, Claim No. 109088, Motion Nos. M-68407, M-68408, M-68457, M-68561, M-68562, UID #2004-032-068).

Defendant's motion is GRANTED and the claim is DISMISSED.

July 18, 2005
Syracuse, New York
HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion..................................................................................................1


Affirmation of Ed J. Thompson, Esquire, Assistant Attorney General

in support, with exhibits attached thereto.................................................2


Letter from Claimant dated June 1, 2005, in opposition......................................3


[1] The Court of Appeals in Lepkowski v State of New York, 1 NY3d 201 held in dictum that like Supreme Court, CPLR 3022 is the remedy for lapses in verification of a claim in the Court of Claims. The Court did not reach the situation where the Defendant has elected to treat an unverified claim as a nullity in accordance with CPLR 3022, and Claimant thereafter fails to properly and timely serve and/or file a properly verified claim. Since the requirements of Court of Claims Act §§ 10 and 11 are jurisdictional, once notice of the verification defect is provided pursuant to CPLR 3022, the failure to thereafter comply with Court of Claims Act §§ 10 and 11 renders the claim jurisdictionally defective (see Newman v State of New York, Ct Cl, Hard, J. dated September 21, 2004, Claim No. 109088, Motion Nos. M-68407, M-68408, M-68457, M-68561, M-68562, UID #2004-032-068; but see Siegel, NY Prac §235, at 394 [4th ed]).
[2] Where the original unverified claim is a nullity, Claimant must serve the verified claim in accordance with Court of Claims Act § 11(a)(i). Claimant actually served the verified claim on January 26, 2004 by regular mail, which is not a proper method of service. However, Defendant failed to timely raise that objection by an affirmative defense in the answer or by a timely motion to dismiss. Service of a responsive pleading is required to be made within 40 days of service of the claim and any objection to timeliness or service must be raised in the responsive pleading or by a motion to dismiss brought within the same time frame (Uniform Rules for the Court of Claims [22 NYCRR §206.7]; Court of Claims Act § 11[c]). This motion was brought almost 16 months after service of the claim.