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 Affidavit of Keith Herrin filed February 24, 2005
3) Affirmation of Assistant Attorney General Joel L. Marmelstein
(Marmelstein Affirmation) and Affidavit of Janet Barringer (Barringer
Affidavit) field February 8, 2005.
Filed Papers: Claim filed August 9, 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. By Order to Show Cause, the Court seeks to resolve the status of the
The instant Claim is a bailment accruing on March 24, 2004 (Claim ¶ 4) and
arising from the alleged destruction of certain articles of Claimant's jewelry,
which, subsequent to the filing of the Claim were returned to Claimant and
shipped home by him (Herrin Affidavit ¶ 6).
CPLR 3022 allows a party to treat an unverified pleading as a nullity if the
receiving party notifies the other party to the litigation with due diligence.
The phrase "due diligence" has remained undefined (see Matter of Miller v Bd.
of Assessors, 91 NY2d 82, 86; Lepkowski v State of New York, 1 NY3d
201) but most courts have held that the rejection must be tendered within 24
hours (see e.g. Maynard v Wait, 246 AD2d 853, 854; Rivera v State
of New York, Ct Cl, McNamara, J., Claim No. 104625 [unreported
decision]). In addition to a timely rejection, the Defendant must establish a
valid basis existed for the rejection and that the basis for the rejection was
articulated to Claimant.
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 Claimant's papers, confirms
the Claim, as asserted by the Defendant in its nullity letter, was not properly
verified as the verification was not sworn to before a notary public, but
rather, due to the alleged unavailability of a notary public, Claimant affirmed
the submission under penalty of perjury. Claimant, at all times relevant was an
inmate, is not one of the individuals authorized by statute to affirm documents
under penalty of perjury (see CPLR 2106). Moreover, Claimant acknowledged
the defective verification by stating that he prepared, but did not serve,
inter alia, papers to address the verification issue raised by Defendant
(Herrin Affidavit ¶¶ 5, 7).
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
(see Lepkowski v State of New York, 1 NY3d 201; see also Newman
v State of New York, 5 Misc 3d 640).
The Court also notes that a bailment Claim is governed by Court of Claims Act
§ 10(9) which requires that the Claim be filed and served within 120 days
of the inmate's exhaustion of his administrative remedies. Applying that
statute to the instant facts, and assuming a later accrual date of April 9,
, Claimant's service of the defective
Claim on September 24, 2004 was also untimely (see Green v State of
, Ct Cl, Lebous, J., Claim No. 109512, UID #2005-019-507
[unreported] February 3, 2005). As such, the Court need not reach Claimant's
request for other relief (see Herrin Affidavit
¶ 14) or
determine whether the Claim has been rendered moot by the return of the at-issue
Accordingly, Claim No. 109710 shall be and hereby is dismissed.