3) Affirmation of Assistant Attorney General Joel L. Marmelstein (Marmelstein
Affirmation) and Affidavit of Janet Barringer (Barringer Affidavit)
filed January 28, 2005.
Filed Papers: Claim filed April 19, 2004.
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) but remain unanswered having been rejected as a
The instant Claim alleges negligence, assault, discrimination and inadequate
medical treatment commencing on January 26, 2004 and
Here, it is undisputed that Defendant timely and properly rejected the Claim as
a nullity. It is also undisputed that Claimant failed to both file and serve a
properly verified Claim. The Court's review of its file reveals the filed
Claim, as well as the copy of the Claim appended to Defendant's papers, confirms
the Claim was completely lacking a verification (see CPLR 3020). In
response to the rejection of his Claim, in April 2004, Claimant sought
Defendant's permission to withdraw his Claim and for an extension of time to
"make proper correction" (Renelique Submission). Defendant neither
responded to the request nor answered the Claim. Claimant took no other
curative steps until seven months later when he responded to the Court's Order
to Show Cause by supplying a verified "Amend Complaint" (id.). Claimant
asserts that he has one year in which to amend his Claim or that a Notice of
Intention he served has extended his time in which to file and serve his
"amended Complaint" (id.).
Contrary to Claimant's assertions, his time in which to amend his Claim without
leave of the Court has expired (CPLR 3025[a]). Moreover, as this Court views
verification of the Claim as a jurisdictional requirement (see Givens
v State of New York, Ct Cl, [Claim No. 109842] Sise, P. J. unreported
) amendment is not available to cure the defect present here (see e.g.
Roberts v State of New York, 4 Misc 3d 768, [collecting cases]). A similar
conclusion was reached in another nullity case, Newman v State of New York,
5 Misc 3d 640, where Claimant's attempt to amend a claim to cure the
deficient verification was not permitted.
Claimant's alternative argument that he may still commence a claim as of right
based upon the Notice of Intention served in April 2004 is valid in
. However, to do so, Claimant must start
anew and commence a Claim in compliance with Court of Claims Act §§
10, 11 and 11-a. As noted, he may not do so under the instant Claim number
(accord Ferran v Benkowski
, 260 AD2d 690). In light of the
foregoing, the Court finds the Claim was not properly commenced in accordance
with the Court of Claims Act, thereby depriving it of jurisdiction.
By virtue of the finding that the claim is jurisdictionally defective, were the
Court to reach the issue only the allegations set forth in the notice of
intention would be entitled to the benefit of the service and filing extension
of Court of Claims Act § 10 (3). The notice could not reasonably be
construed as providing timely notice to the State of allegations contained in
the "amended complaint" occurring after service of the Notice of
Intention (see Spearman v State of New York, Ct Cl, May 4, 2001
[Claim No.103736] Sise, J., unreported). Claimant's remedy as to those
allegations may be found in Court of Claims Act § 10(6).
Accordingly, Claim No. 109205 shall be and hereby is dismissed.