New York State Court of Claims

New York State Court of Claims

RENELIQUE v. THE STATE OF NEW YORK, #2005-028-552, Claim No. 109205, Motion No. M-69556


Upon the Court's Order to Show Cause the Claim is dismissed. Claim was properly rejected as a nullity.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Joel L. Marmelstein, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 2, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


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

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

2) "Order to Show Cause" and Amended Complaint of Gary Renelique filed January 27, 2005 (Renelique Submission)[1]

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 nullity.

The instant Claim alleges negligence, assault, discrimination and inadequate medical treatment commencing on January 26, 2004 and thereafter[2].

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 part[3]. 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.

August 2, 2005
Albany, New York

Judge of the Court of Claims

[1] Given the posture of the Claim the Court accepted Claimant's submission as being responsive to the Order to Show Cause.
[2] The "Amend Complaint" included acts through December 6, 2004. Claimant's initial filing alleged acts through March 2004.
[3] The extension of time provided by serving a Notice of Intention is either one or two years depending on the nature of the Claim (see Court of Claim Act § 10[3]).