New York State Court of Claims

New York State Court of Claims

MARINHO v. THE STATE OF NEW YORK, #2005-028-539, Claim No. 109642, Motion No. M-69574


Synopsis


Claimant filed a verified claim but served an unverified claim which was properly and timely rejected as a nullity. Claimant’s timely subsequent service of the verified claim cures nullity.

Case Information

UID:
2005-028-539
Claimant(s):
ALEXANDRINO MARINHO
Claimant short name:
MARINHO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109642
Motion number(s):
M-69574
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
MICHAEL KASZUBSKI, P.C.
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Katharine S. Brooks, Esq.
Assistant Attorney General
SMITH, MAZURE, DIRECTOR, YOUNG & YAGERMAN, PC, of counsel
Third-party defendant’s attorney:

Signature date:
June 28, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on the Court’s Order to Show Cause:


1) Order to Show Cause filed January 12, 2005

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 Affidavit)


4) Reply Affidavit of Michael Kaszubski, Esq. filed March 7, 2005 (Kaszubski Reply) .

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July 23, 2004; Decision and Order Marinho v State of New York, Ct Cl, Claim No. None, Motion No. M-68275, Waldon , J., [unpublished], July 15, 2004.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 York, 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 merits[1].

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.



June 28, 2005
Albany, New York

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




[1]. The parties are reminded that the Court of Claims is a filing court (see 22 NYCRR 206.5[c]).