New York State Court of Claims

New York State Court of Claims
TAYLOR v. THE STATE OF NEW YORK, #2005-028-527, Claim No. 105660, Motion Nos. M-69187, CM-69322
Synopsis

Affirmed 33 AD3d 438 [1st Dept 10/17/06].
Case Information
UID:
2005-028-527
Claimant(s):
RICKY TAYLOR
Claimant short name:
TAYLOR
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105660
Motion number(s):
M-69187
Cross-motion number(s):
CM-69322
Judge:
RICHARD E. SISE
Claimant’s attorney:
MICHAEL G. O’NEILL, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Leslie A. Stroth, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 5, 2005
City:
Albany
Comments:

Official citation:

Appellate results:
Affirmed 33 AD3d 438 [1st Dept 10/17/06]
See also (multicaptioned case)



Decision

In reaching it decision, the Court has read and considered the following papers:
(1) Notice of Motion and Supporting Affirmation of Leslie A. Stroth, Assistant Attorney General (Stroth Affirmation) with Exhibits A-I dated October 4, 2004 and filed on October 5, 2004;

(2) Notice of Cross-Motion with Supporting Affirmation of Michael G. O’Neill, Esq., (O’Neill Affirmation) with Exhibits A and B annexed, dated November 1, 2004, filed on November 3, 2004;
(3) Memorandum of Law in Opposition to State’s Motion for Summary Judgment and in Support of Claimant’s Cross-Motion for Summary Judgment, dated November 1, 2004, received November 3, 2004; and
(4) Defendant’s Reply Affirmation of Leslie A. Stroth, Assistant Attorney General (Stroth Reply ) with Exhibit A annexed, dated January 12, 2005, filed January 19, 2005.
Claimant, Ricky Taylor, was convicted of two counts of aggravated harassment in the second degree, as well as one count of criminal contempt in the second degree on December 4, 1998. He was sentenced to a jail term of nine months.
On January 22, 2002, the Appellate Term of the Supreme Court, First Department, reversed the conviction and dismissed the information filed against him for legal insufficiency.
On February 26, 2002, the Claimant filed a verified claim in the New York State Court of Claims. The claim was verified by the Claimant’s attorney. The Defendant, the State of New York, seeks summary judgment dismissing the claim because of lack of jurisdiction, based upon the Claimant’s failure to personally verify his claim, as required by the Court of Claims Act, Section 8-b(4) (Stroth Affirmation, ¶ 6).
The Claimant cross moves for summary judgment on the issue of liability. The Cross-Motion also opposes the State’s argument that the claim is required to be personally verified and annexes a personal verification of Claimant (Exhibit A annexed to Cross-Motion), requesting that it be accepted nunc pro tunc, if the Court determines personal verification is required by the Court of Claims Act (O’Neill Affirmation, ¶ 2 [unpaginated]).
New York State Court of Claims Act, Section 8-b(4) states:
[t]he claim shall state facts in sufficient detail to permit the court to find that claimant is likely to succeed at trial in proving that (a) he did not commit any of the acts charged in the accusatory instrument or his acts or omissions charged in the accusatory instrument did not constitute a felony or misdemeanor against the state, and (b) he did not by his own conduct cause or bring about his conviction. The claim shall be verified by the claimant. If the court finds after reading the claim that claimant is not likely to succeed at trial, it shall dismiss the claim, either on its own motion or on the motion of the state.

In construing this section, the Court has consistently noted that the statute, which created a new cause of action, must be strictly construed (see Alston v State of New York, 97 NY2d 159).
Similarly, this Court has noted that the Legislature’s choice of language can only be given meaning if the Claimant is required to verify his claim (see Long v State of New York, 2 Misc 3d 390). He is the only one who can attest to his own innocence (see Pejcinovic v State of New York, unreported decision of Presiding Judge Christopher J. Mega, claim no. 89358, filed August 8, 1997). Accordingly, the Court of Claims has required that the verification be made by the Claimant and not his attorney (see Long v State of New York, 2 Misc 3d 390, supra; Pejcinovic v State of New York, unreported decision of Presiding Judge Christopher J. Mega, claim no. 89358, filed August 8, 1997, supra; Vasquez v State of New York, unreported decision of Blinder, J., Claim No. 83301, filed June 30, 1995).
The Court has also held that a defective verification may not be corrected (see Long at p 395; Pejcinovic at pp 3-4). Accordingly, this Court may not correct the defective verification nunc pro tunc, as the Claimant requests.
Therefore, the Defendant’s Motion to Dismiss is granted, and the claim is hereby dismissed. The Claimant’s Cross-Motion is denied.

April 5, 2005
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims