The following papers were read upon the Court's Order to Show Cause:
1) Order to Show Cause filed January 12, 2005;
2) Affirmation of John W. Keegan, Jr., Esq., (Keegan Affirmation) and
Affidavit of Diane Denardo (Denardo Affidavit) filed March 3,
3) Affidavit of Catherine Naveed (Naveed Affidavit) filed March 3,
Filed Papers: Claim filed October 12, 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 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.
James Denardo was grievously injured in a single car accident on July 16, 2004.
As a result of the accident and the depth of his injuries, James Denardo's
mother, Diane Denardo petitioned the Westchester County Supreme Court to be
appointed his guardian. While that petition was pending, Diane Denardo
executed, served and filed a Claim seeking compensation for her son's injuries
and did so in his name. The Claim was rejected by the Attorney General.
Thereafter, Diane Denardo was appointed guardian of her son and his affairs.
Counsel, cognizant of the defect, attempted to remedy same by entering into a
stipulation of discontinuance with Defendant, indicating that a claim by Ms.
Denardo in her representative capacity would be served and filed.
Against this backdrop, the Court issued the instant Order to Show Cause aware
only that the Claim had been rejected as a nullity.
In response to the Order to Show Cause, Claimant requests permission to
withdraw the instant Claim and again indicates a claim by the guardian in her
representative capacity will be filed pursuant to the authority of Court of
Claims Act § 10(5) (see DeStefano v State of New York,
Ct Cl, O'Rourke, J., Claim No. None, UID #2001-017-615, [unreported]; see
also Henry v City of New York, 94 NY2d 275). Defendant's only
response is that an unverified Claim was served (Naveed Affidavit ¶
The request is granted and the Clerk of the Court is directed to mark the Claim
withdrawn (see CPLR 3217).