2) Affidavit of Michael Kaszubski, Esq. filed February 10, 2005, with annexed
Exhibits (Kaszubski Affidavit).
3) Affidavit of Catherine Naveed filed March 3, 2005 (Naveed
4) Reply Affidavit of Michael Kaszubski, Esq. filed March 7, 2005 (Kaszubski
Filed Papers: Claim filed July 23, 2004; Decision and Order Marinho v State
of New York, Ct Cl, Claim No. None, Motion No. M-68275, Waldon , J.,
[unpublished], July 15, 2004.
In Lepkowski v State of New York, 1 NY3d 201, the Court of Appeals, in
dicta, indicated that Court of Claims Act § 11(b) "embraces CPLR 3022's
remedy for lapses in verification" and, pursuant to CPLR 3022, "[a] defendant
who does not notify the adverse party's attorney with due diligence waives any
objection to an absent or defective verification." In the aftermath of
Lepkowski, this Court has encountered, as Defendants rejected claims with
verification shortcomings, the many ways in which Claimants have dealt with
rejection as they aim to rectify the purported deficiency. A number of these
claims, including the instant Claim, are filed with the Clerk of the Court
(see,Court of Claims Act § 11) but remain unanswered having been
rejected as a nullity. By Order to Show Cause, the Court seeks to resolve the
status of the instant Claim.
In response to the Order to Show Cause, Claimant advises that upon receipt of
the rejected Claim, corrective steps were taken. Claimant’s counsel avers
that while the application for permission to late file the instant Claim was
sub judice, he was contacted and advised that if the application was
granted, counsel from the law firm Smith Mazure would represent the
Defendant’s interests. Following receipt of the favorable decision, a
properly verified claim was filed and served upon the outside counsel who had
appeared on behalf of the Defendant (Kaszubski Affidavit) and a copy of
the Claim was served upon the Attorney General. Claimant advises that upon
receipt of the rejected Claim corrective steps were taken (Kaszubski
Reply). Although not in the Court’s file, Claimant has attached to
his papers an Answer served by the Smith Mazure firm. The Court’s
records confirm that the Claim filed with the Court was in fact verified.
In response, Defendant asserts that the only Claim served by Claimant was an
unverified one that was rejected on July 27, 2004, the day after it was received
(Naveed Affidavit ¶ 4), but does not controvert any of
Claimant’s other averments.
In Newman v State of New York, 5 Misc 3d 640, Judge Judith A. Hard noted
that Claimant’s attempt to amend a claim to cure the deficient
verification was not permissible (Newman v State of New York, supra
5 Misc 3d at 642) and held that Claimant was required, in the face of a
proper rejection, to serve “a verified claim within the applicable time
period contained in section 10 of the Court of Claims Act” (id.)
and the failure to do so resulted in an untimely claim (id.). The
curative measure approved in Newman [service within the statutory time
frame] was premised on the fact Claimant had filed a verified claim with the
Court and had served an unverified copy of the claim.
The facts in the instant Claim are similar to those of Newman v State of New
, except that here Claimant did take corrective steps which appear to be
consistent with the holding in Newman
. Moreover, Defendant did
interpose an answer which did not assert any jurisdictional defenses evidencing
its intent to litigate the Claim upon the
As such, the Court vacates its Order To Show Cause and the Clerk of the Court
is hereby directed to transfer the instant Claim to the Individual Assignment
Calendar of the Hon. Thomas H. Scuccimarra.