New York State Court of Claims

New York State Court of Claims

CHATIN v. THE STATE OF NEW YORK, #2005-028-551, Claim No. 108771, Motion No. M-69561


Synopsis


Defendant's rejection of the Claim was improper as the served and filed Claim was verified consistent with CPLR 3022

Case Information

UID:
2005-028-551
Claimant(s):
CLAY CHATIN
Claimant short name:
CHATIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108771
Motion number(s):
M-69561
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
CLAY CHATIN, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Katharine S. Brooks, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 2, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read upon the Court's Order to Show Cause:


1) Order to Show Cause filed January 11, 2005;


2) Claimant's submission filed March 17, 2005; and


3) Affidavit of Catherine Naveed (Naveed Affidavit) filed February 28, 2005.


Filed Papers: Claim filed January 14, 2004; Answer filed March 18, 2005[1]

In Lepkowski v State of New York, 1 NY3d 201, 210, 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 a number of claims, including the instant Claim, that are filed with the Clerk of the Court (see Court of Claims Act § 11), rejected as a nullity and subsequently answered.

To determine whether there has been a proper rejection, CPLR 3022 requires a three part analysis. The Court must first determine whether there has been a timely rejection of the pleading. Then, the Court must determine whether a valid basis existed for the rejection of the pleading and if Defendant sufficiently articulated the deficiency. If the Defendant has satisfied these three prongs, then the Court must determine whether, and how, a Claimant may cure the pleading defect. It necessarily follows that if the Defendant has not satisfied each prong that a waiver of the defect has occurred (CPLR 3022; see also Givens v State of New York, Ct Cl, Sise, J. Claim No. 109842).

Here, Defendant timely rejected the Claim as a nullity within 24 hours of its receipt (see Lepkowski v State of New York, 1 NY3d 201; Maynard v Wait, 246 AD2d 853, 854; Rivera v State of New York, Ct Cl, McNamara, J., Claim No. 104625 [unreported decision]) and articulated its reason for the rejection as being the Claim lacked the required verification language (CPLR 3022). As such, the focus is on the second prong of the test - whether the verification was in fact defective. Contrary to Defendant's assertions, the filed Claim and the Claim rejected by Defendant - identical in all respects - was verified in accordance with CPLR 3020. The verification - signed by the Claimant and witnessed by a notary public - contains the elements required by CPLR 3020. As such, the Claim was not properly rejected.

In light of the foregoing, the Court finds the Claim filed with the Court and rejected by Defendant on February 3, 2004 was properly commenced in accordance with the verification requirements of the Court of Claims Act and the Claim is properly before the Court subject to the affirmative defenses preserved in Defendant's answer.

Accordingly, the Court vacates its Order to Show Cause and the Clerk of the Court is hereby directed to return the Claim to the unassigned calendar.


August 2, 2005
Albany, New York

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




[1] Defendant stated the Answer, although filed with the Court in March 2005, was served on Claimant a year earlier on March 30, 2004.